Stephen McKitrick v. Rob Jeffreys, Warden

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0806n.06
Filed: November 15, 2007
No. 06-4546
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Stephen McKitrick,
Petitioner-Appellant,
v.
Rob Jeffreys, Warden,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
BEFORE: Merritt, Rogers, and McKeague, Circuit Judges.
MERRITT, Circuit Judge. In this habeas case, Stephen McKitrick pled guilty in January
2006 to kidnapping and robbery in Hancock County, Ohio, Court of Common Pleas after he broke
into the home of his former landlord, an elderly woman, and robbed her. He was ordered to serve
consecutive sentences of eight years for kidnapping and four years for robbery. On May 10, 2006,
the district court granted a conditional writ of habeas corpus after finding that the state had violated
McKitrick’s Fifth Amendment right to be free from Double Jeopardy and his Sixth Amendment right
to effective assistance of counsel. The writ ordered that the State of Ohio either release McKitrick
or resentence him within 90 days: “[T]his Court . . . orders that Petitioner be released from prison
unless the Hancock County, Ohio, Court of Common Pleas resentences him within ninety days of
the entry of this Order.” Memorandum Opinion of District Court at 23, J.A. at 96.

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The State of Ohio initiated proceedings to resentence McKitrick, but did not actually
resentence him until 91 days after entry of the district court’s order. Based on this one-day delay,
McKitrick filed a motion with the district court that issued the conditional writ requesting that the
district court order his immediate release from state custody due to the state’s failure to comply
precisely with the terms of the conditional writ. The district court denied McKitrick’s request,
concluding that the state substantially complied with the terms of the conditional writ and release
was not mandatory. McKitrick sought and was granted a certificate of appealability on that issue
only.
Despite the limited nature of the Certificate of Appealability, McKitrick raises three issues
on appeal. First, he contends that the district court erred in not ordering his immediate release from
custody due to the state’s failure to strictly comply with the terms of the writ. Second, he requests
injunctive relief barring the state from resentencing him in the future and, third, he contends that the
state violated his constitutional rights during the resentencing proceeding. As to the first issue, for
the reasons set forth below we agree with the district court that the State substantially complied with
the district court’s order and affirm the judgment below. The second and third issues were not raised
below and are not the subject of the district court order at issue in this appeal. They are not,
therefore, properly before us and we decline to address them herein.
The Conditional Writ
Conditional grants of the writ of habeas corpus provide the state with a window of time
within which it may cure the constitutional error. Satterlee v. Wolfenbarger, 453 F.3d 362, 369 (6th
Cir. 2006). District courts rightly favor conditional grants of the writ, which, in addition to

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providing the state an opportunity to cure its constitutional errors, maintain comity among co-equal
sovereigns. Hilton v. Braunskill, 481 U.S. 770, 775 (1987). “[T]he sole distinction between a
conditional and an absolute grant of the writ of habeas corpus is that the former lies latent unless and
until the state fails to perform the established condition, at which time the writ springs to life.”
Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.), cert. denied, 127 S. Ct. 838 (2006). Accordingly,
“[w]hen the state fails to cure the error, i.e., when it fails to comply with the order’s conditions, ‘[a]
conditional grant of a writ of habeas corpus requires the petitioner’s release from custody.’”
Satterlee, 453 F.3d at 369 (quoting Fisher v. Rose, 757 F.2d 789, 791 (6th Cir. 1985)).
Despite the seemingly rigid language on which Petitioner relies for his request, Satterlee does
not require immediate release in all cases where a term of the conditional writ was not performed
precisely as ordered. The district court may make exceptions when the state has “substantially
complied” with the terms of the order. So, while conditional grants of the writ of habeas corpus
“would be meaningless if a habeas court could not order a noncompliant state to release a prisoner,”
id. at 369 n.5, the conditional nature of the writ also places within the district court the power to
determine that its order has been substantially complied with and release is not warranted .
McKitrick’s motion essentially asked the district court to make its conditional writ order
absolute. District courts retain jurisdiction to execute their judgments if necessary – in other words,
they may change their “conditional” orders into absolute orders if the state does not fulfill the
mandate directed in the habeas court’s order. A habeas court has broad discretion in fashioning
habeas relief and may dispose of petitions as “law and justice require.” 28 U.S.C. § 2243. This
broad discretion inherent in a district court’s habeas powers includes the ability to evaluate whether

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the state has provided a legitimate reason for its delay in executing the conditions set forth in the
writ. Gentry, 456 F.3d at 692 (“A federal district court retains jurisdiction to determine whether a
party has complied with the terms of a conditional order in a habeas case.”); Gibbs v. Frank, 500
F.3d 202, 208 (3d Cir. 2007) (same).
When a petitioner alleges noncompliance with a conditional order, the district court must
make a finding concerning the sufficiency of the action that the state has taken pursuant to the district
court’s mandate, and it must also evaluate the prejudice to the petitioner by any noncompliance. See
Phifer v. Warden, United States Penitentiary, Terre Haute, Ind., 53 F.3d 859, 864-65 (7th Cir. 1995).
Substantial compliance with the terms of the order may be sufficient. For example, in Santos-
Rosario v. Renico, No. 05-CV-70456, 2006 WL 847111, at *1-2 (E.D. Mich. Mar. 30, 2006), the
district court denied the petitioner’s request to make the writ absolute even though the state failed
to comply with the precise terms of the district court’s order. The district court held that the state had
substantially complied with the conditions by appointing counsel for defendant two weeks after the
90-day time frame directed in the district court’s order.
The Sixth Circuit has approved a district court’s finding of “substantial compliance” with a
conditional writ. Rose v. Engle, No. 85-3740, 1986 WL 16122 (6th Cir. Sept. 9, 1986) (release or
retrial within 60 days of the Supreme Court’s denial of certiorari was substantial compliance with
the Sixth Circuit’s order to retry or release petitioner where the state timely pursued avenues of
appeal). See also Gentry, 456 F.3d at 692 (citing with approval Santos-Rosario v. Renico, 05-CV-
70456, 2006 WL 847111, at *1-2 (E.D. Mich. Mar. 30, 2006)).

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We agree with the district court that the State of Ohio substantially complied with the order
to resentence McKitrick during the ninety-day window of time that the district court provided for
curing the sentencing error. Counsel was appointed for McKitrick in early June and the resentencing
hearing was set for July 19. Due to a continuance, the sentencing hearing was not held until August
4, 2006, and McKitrick was orally sentenced on August 9, 2006, one day after expiration of the 90-
day window set by the district court. The Judgment Entry imposing the new sentence was filed on
August 28, 2006, well within the thirty-day time frame established under the Rule 7(A) of
Superintendence for the Courts of Ohio for the journalization of a resentencing entry. The State did
not simply ignore the district court’s order and take no action. Counsel was appointed and a hearing
date set well within the 90-day time frame. Had the resentencing hearing taken place as originally
scheduled, it likely would have been completed and the resentencing order entered as a judgment
within the 90-day time frame.
What the district court did here was essentially to grant the state an extension of time to
comply with the conditional writ. Although it is preferable for the state to request an extension of
time from the district court before the time for compliance expires if the state realizes that the terms
of the conditional writ will not be fulfilled within the time frame specified, it is also within the
district court’s discretion to grant an extension post-hoc if the time for compliance has passed. See
Chambers v. Armontrout, 16 F.3d 257, 261 n.2 (8th Cir. 1994). Here, the district court evaluated
the state’s compliance with its conditional order and found the state had sufficiently complied with
the order. We see no abuse of discretion in that ruling by the district court.

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Other Issues Raised by Petitioner on Appeal
As briefly noted above, McKitrick raises two other issues on appeal. However, the
Certificate of Appealability for this appeal raises only the issue concerning his release based on the
language on the conditional writ and that is the only issue properly before us. McKitrick’s concerns
about the constitutionality of his resentencing must be first addressed by the state court, and
McKitrick is apparently pursuing an appeal in the state court. Once the issues related to the
resentencing have been exhausted in state court, McKitrick may file a new federal habeas petition
challenging the resentencing, but that issue is not properly before us in this appeal. Our jurisdiction
at this point extends only to a ruling on whether the district court exercised proper discretion in
denying McKitrick’s request to order his release from prison. As for McKitrick’s injunction request,
the issue was neither raised before nor ruled upon by the district court. It is therefore not properly
before us on appeal and we decline to address it.
For the foregoing reasons, we affirm the judgment of the district court.

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