Case 2:13-cv-01741-JCM-DJA Document 99 Filed 04/08/24 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Case No.: 2:13-cv-01741-JCM-DJA
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`Order
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`Petitioner
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`REYNALDO AGAVO,
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`v.
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`CALVIN JOHNSON,
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`Respondents
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`Before the Court in this habeas matter is Respondents’ Motion for Relief from Judgment
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`(ECF No. 96) under Fed. R. Civ. P. 60(b).
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`In October 2021, the Court conditionally granted the petition for writ of habeas corpus as
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`Background
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`to ground one, vacated the state court judgment of conviction, and ordered Petitioner’s release
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`unless the state elected to retry Petitioner and commence jury selection within 120 days
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`following the election to retry Petitioner. ECF No. 88 at 41-42. Following appellate proceedings,
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`on October 26, 2023, the state filed a notice of intent to retry Petitioner. ECF No. 95. As such,
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`the deadline to commence jury selection was February 23, 2024.
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`Respondents request the Court amend the judgment to allow jury selection in the retrial to
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`commence no later than June 24, 2024, because although Respondents generally informed the
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`district attorney’s office of the timeline for compliance, Respondents failed to specifically inform
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`the district attorney’s office of the date for compliance, and the district attorney’s office requires
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`additional time to prepare for the retrial. ECF No. 96 at 3. Petitioner asserts that he “ultimately
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`stakes no position on the State’s motion,” but provides that to the extent Respondents seek an
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`extension based on excusable neglect, the factors weigh against a finding of excusable neglect.
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`Case 2:13-cv-01741-JCM-DJA Document 99 Filed 04/08/24 Page 2 of 4
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`ECF No. 97 at 3.
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`Discussion
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`When a court issues a writ of habeas corpus, it declares in essence that the petitioner is
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`being held in custody in violation of his constitutional rights. See 28 U.S.C. § 2254(a); Preiser v.
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`Rodriguez, 411 U.S. 475, 484 (1973). Courts employ a conditional order of release in appropriate
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`circumstances, which orders the State to release the petitioner unless the State takes some
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`remedial action, such as to retry the petitioner. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 89
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`(2005) (describing the “common practice of granting a conditional writ,” that is, “ordering that a
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`State release the prisoner or else correct the constitutional error through a new
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`hearing”); Herrera v. Collins, 506 U.S. 390, 403 (1993) (“The typical relief granted in federal
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`habeas corpus is a conditional order of release unless the State elects to retry the successful
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`habeas petitioner, or in a capital case a similar conditional order vacating the death sentence.”)
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`“[C]onditional orders are essentially accommodations accorded to the state, in that conditional
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`writs enable habeas courts to give states time to replace an invalid judgment with a valid one.”
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`Wilkinson, 544 U.S. at 87. See also Harvest v. Castro, 531 F.3d 737, 742 (9th Cir. 2008).
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`The Ninth Circuit has held that a district court can modify its conditional writ even after
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`the time provided in the conditional writ has lapsed. Harvest, 531 F.3d at 744. “Logically, the
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`equitable power of the district court in deciding a habeas petition includes the ability to grant the
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`state additional time beyond the period prescribed in a conditional writ to cure a constitutional
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`deficiency.” Id. (citing Gilmore v. Bertrand, 301 F.3d 581, 582-83 (7th Cir. 2002). Such
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`modifications are governed by the Habeas Rules and, by incorporation, the Rules of Civil
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`Procedure, including Rule 60. Harvest, 531 F.3d at 745.
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`Under Rule 60, the court may relieve a party from a final judgment or order for the
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`following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
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`discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the
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`judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief
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`from the judgment. Fed. R. Civ. P. 60(b); Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000).
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`The court may grant an extension of time under Rule 6 when a party moves to extend a
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`deadline before the original time expires and the stated reasons show good cause. Fed. R. Civ. P.
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`6(b)(1); LR IA 6-1. However, Rule 6 specifically prohibits extensions of the deadlines set forth
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`in Rules 59(e) and 60(b). Fed. R. Civ. P. 6(b)(2) (“A court must not extend the time to act under
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`Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).”).
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`The Court considers the four-factor test the Supreme Court established in Pioneer: (1) the
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`danger of prejudice to the nonmoving party; (2) the length of delay; (3) the reason for the delay,
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`including whether it was within reasonable control of the movant; and (4) whether the moving
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`party’s conduct was in good faith. Pioneer Invs. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S.
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`380, 392 (1993).
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`In Harvest, the court found the state had not complied with a district court’s conditional
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`writ ordering retrial within sixty days, and ordered the petitioner unconditionally released from
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`custody. 531 F.3d at 750. The district attorney in Harvest, however, did not file a new complaint
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`against the petitioner until sixty-four days after the expiration of the district court’s order. Id. at
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`740-41. Here, Respondents filed their motion before the deadline to comply passed and have
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`communicated the need to comply with the Court’s conditional writ order with the district
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`attorney’s office.
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`Case 2:13-cv-01741-JCM-DJA Document 99 Filed 04/08/24 Page 4 of 4
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`Petitioner asserts prejudice because that the current delays “have amounted to wasted
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`time.” ECF No. 97 at 3. Although Petitioner has been in custody for nearly twenty years, as he
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`points out, the Court does not find an actual possibility of prejudice to his interests based on the
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`delay in question. Petitioner asserts that he has been unable to meaningfully prepare his defense
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`because the state district court has not ruled on his pro se motion for appointment of counsel.
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`Such delay in appointment of counsel, however, is not within Respondents’ reasonable control.
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`Accordingly, the Court does not find prejudice and the length of delay is relatively minimal.
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`Although Respondents acknowledge that they did not initially inform the district
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`attorney’s office of the specific deadline for retrial, they communicated the deadline for
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`compliance upon discovering their inadvertence. Respondents further assert that the additional
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`time is largely the practical result of the district attorney’s office reconstructing a decades old
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`case in addition to managing their current case load. To the extent the reason for the delay was
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`due to Respondents’ carelessness, the Court does not find the carelessness inexcusable. See
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`Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) (finding excusable neglect for untimely filing
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`of notice of appeal due to failure of law firm’s calendaring system). In addition, the Court finds
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`no evidence of bad faith. Accordingly, the Court will grant Respondents’ motion.
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`IT IS THEREFORE ORDERED that Respondents’ Motion for Relief from Judgment
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`(ECF No. 96) is granted.
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`It is further ordered that Judgment (ECF No. 88) is modified to extend the deadline for
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`the State to commence jury selection in the retrial to June 24, 2024.
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`DATED this day of April, 2024.
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`JAMES C. MAHAN
`UNITED STATES DISTRICT JUDGE
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