DAVID SMITH v. CYNTHIA DAVIS (2025)

OPINION AND ORDER

Finding that Petitioner David Smith was convicted in State court based on an unduly suggestive process intended to elicit a positive identification from a victim who suffered severe head trauma, the Sixth Circuit remanded “with instructions that the district court issue Smith a writ of habeas corpus unless the State proceeds, within 180 days, to prosecute Smith in a new trial without utilizing Tolliver's identification of Smith, which shall be suppressed and excluded from evidence.” (ECF No. 33, PageID #3060.) Pursuant to the Sixth Circuit's mandate, the Court then issued a conditional writ.

After a retrial in State court resulting in his conviction for a second time, Petitioner David Smith moves to enforce the conditional writ. In response, Respondent contends that the State holds Mr. Smith in custody pursuant to a new judgment, divesting the Court of jurisdiction. For the reasons that follow, the Court determines that it has jurisdiction and GRANTS Petitioner's motion to enforce the conditional writ as absolute as of March 13, 2025.

BACKGROUND

Following the issuance of the conditional writ pursuant to the Sixth Circuit's mandate (ECF No. 35), Petitioner unsuccessfully made emergency efforts on the eve of his retrial to secure rulings from the Sixth Circuit and this Court clarifying the writ. Mr. Smith's retrial began on February 24, 2025 and resulted in a guilty verdict on March 12, 2025. The next day, Petitioner filed his motion to enforce. Rather than arguing that the prosecution complied with the mandate at the retrial of Mr. Smith, Respondent opposes by challenging the Court's jurisdiction. Petitioner contends that the Court has jurisdiction to enforce the writ and that Respondent failed to comply with it, making it unconditional or absolute by its own terms as of March 13, 2025. At oral argument, the Court gave counsel for the parties the opportunity to address each issue.

JURISDICTION

On review of the various authorities that the parties present addressing the arcane issue and unusual procedural posture at hand, the Court begins its analysis with D'Ambrosio v. Bagley, 656 F.3d 379 (6th Cir. 2011). There, the Sixth Circuit reviewed the case law regarding federal jurisdiction following the issuance of a writ of habeas corpus. In the context of the specific condition writ at issue, its discussion identified two circumstances that divest a district court of jurisdiction to enforce a writ: (1) the State's compliance with a conditional writ; or (2) vacatur of the underlying unconstitutional conviction. Id. at 384–88. Each depends on a separate line of authority. The former rests on Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006), which holds that “the district court retain[s] jurisdiction to enforce its conditional grant of a writ of habeas corpus.” After compliance, however, the court loses jurisdiction. D'Ambrosio, 656 F.3d at 385. The latter builds on Eddleman v. McKee, 586 F.3d 409 (6th Cir. 2009). Because the former circumstance and line of authority collapses into the merits, the Court begins by addressing the latter, where Respondent focuses her argument.

Respondent argues that Petitioner “was released from the Warden's custody and the State court vacated the prior unconstitutional conviction,” divesting the Court of jurisdiction. (ECF No. 43, PageID #3307.) In D'Ambrosio, the petitioner—who was an inmate on death row—obtained a conditional writ of habeas corpus directing the State either to set aside his convictions and sentence or to conduct a new trial within a specified time. 656 F.3d at 381. When the State failed to retry the petitioner within the time set in the conditional writ, the district court issued an unconditional writ barring prosecution of the petitioner. Rejecting the respondent's argument that the petitioner's conviction was vacated, divesting the federal courts of jurisdiction, the Sixth Circuit held that the petitioner's unconstitutional conviction was never vacated. Id. at 386. To the contrary, the record in D'Ambrosio “clearly demonstrates that neither D'Ambrosio nor the prosecution truly intended for those charges to be vacated.” Id. at 387. Further, the court held that “the whole course of conduct counsels against finding that D'Ambrosio’s convictions were ‘vacated.’ ” Id. In reaching this decision, the court explained that “what vacates a conviction is an entry in the court docket, which—depending on the state's procedures—is likely made through a court order, or clear actions by the court signifying a vacatur.” Id. at 388.

A. Findings of Fact

To determine whether Petitioner's unconstitutional conviction from 2016 was vacated—and, accordingly, whether it is divested of jurisdiction—the Court makes the following findings of fact based on the record before it.

First, the State trial court's docket makes no mention of vacatur of Mr. Smith's conviction from 2016. (ECF No. 47-1, PageID #3782–89.) At oral argument, Respondent conceded that no entry on the docket vacated Mr. Smith's prior conviction. Nor does the record contain any indication that the parties had any agreement or understanding that Mr. Smith's prior conviction was vacated.

Second, on September 20, 2024, to proceed with the retrial of Mr. Smith, the State trial court issued a judgment entry ordering that he “be remanded to the Portage County Jail from Richland Correctional Institution,” a State prison. (ECF No. 47-3, PageID #3793.)

Third, also on September 20, 2024, the clerk of the State trial court issued a “warrant for removal” pursuant to Ohio law commanding the sheriff to transport Mr. Smith from State prison to the local jail. (ECF No. 43-1, PageID #3317). On its face, this warrant for removal references certain provisions of Chapter 2949 of the Ohio Revised Code, which governs execution of a sentence. Each provision of State law referenced on the face of this document refers to a convicted felon and applies to the housing and transportation of a person following a conviction for a felony (or to recovering the costs for the same). See, e.g., Ohio Rev. Code §§ 2949.12 & 2949.13. No provision of State law referenced in the document applies to a person's custody following indictment, pending trial, or before a conviction. Additionally, the warrant for removal directs local officials to return Mr. Smith to State prison following proceedings in the State trial court. The Court finds that this document is an order to transport Mr. Smith from State prison to the local jail so that he can be retried and that it is not a release from custody or vacatur of his prior conviction, which the Sixth Circuit found unconstitutional.

Fourth, the transcript of a status conference held on September 30, 2024 in the State trial court shows that Mr. Smith was not arraigned. That fact demonstrates that neither the State trial court nor the parties saw Mr. Smith's prior conviction as formally vacated. (See generally ECF No. 47-4.) However, the subject of a bond did come up. (Id., PageID #3799.) After the prosecution told the State trial court that “you have to set a bond,” it argued for a cash bond of $500,000. (Id., PageID #3799–3800.) And the State trial court set bond in that amount. (Id., PageID #3802.) That action is consistent with release and commencement of a new case. But no discussion occurred on the record about vacating the prior conviction.

Fifth, the State trial court's judgment entry for the status hearing on September 30, 2024 noted the setting of bond at $500,000 (ECF No. 43-1, PageID #3320; see also ECF No. 47-1, PageID #3782), and it set a date for Mr. Smith's trial (ECF No. 43-1, PageID #3320). But it did not mention vacating Mr. Smith's conviction from 2016. (Id.)

Sixth, Mr. Smith was never rearrested. Respondent does not argue that he was. In fact, the record shows that he was not. In pretrial proceedings in 2025, the State offered Mr. Smith a plea deal, which he did not accept. (ECF No. 47-5.) The plea offer lists Mr. Smith's date of arrest as April 1, 2016. (Id., PageID #3814.) Because Mr. Smith was not rearrested, this fact reinforces a finding that his first conviction was not vacated.

Seventh, at oral argument, counsel debated whether the State maintained a hold or detainer on Mr. Smith, never formally releasing him from its custody. Respondent maintained that the State did not have a holder on Mr. Smith. During argument, counsel for Respondent asserted that she received a record verifying that claim. Although counsel for Respondent represented that she would file the document, inexplicably she never did so. Therefore, the Court is unable to assess the accuracy of this contention and excludes it from consideration. Though it could, the Court will not draw an adverse inference from this failure.

Based on these facts, the Court finds that the State trial court did not vacate Mr. Smith's conviction from 2016. Nor did any party intend to vacate it or act as if it were vacated. The Court bases the latter findings on two additional facts. First, before Petitioner moved to enforce the writ, Respondent acted inconsistently with the position she takes now on the jurisdiction of the federal courts. Respondent argues that Mr. Smith's conviction was vacated by September 30, 2024, by which point in time the State had transferred custody to the sheriff and the State trial court had set bond. On October 18, 2024, Respondent sought review of the Sixth Circuit's decision at the United States Supreme Court. (ECF No. 36.) Filing a petition for a writ of certiorari is not consistent with the position that the federal courts were divested of jurisdiction several weeks earlier. Put another way, seeking review at the Supreme Court demonstrates that Mr. Smith was in custody pursuant to his prior conviction and demonstrates that Respondent acted consistent with that view. Second, throughout the proceedings leading to Mr. Smith's retrial in State court, the State trial court and the prosecution sought to comply with the writ's deadline. Specifically, they sought to ensure Mr. Smith's retrial within the 180-day deadline in the Sixth Circuit's ruling. (See, e.g., ECF No. 47-4, PageID #3799.) But vacatur of the prior unconstitutional conviction would have relieved the State of that obligation. It could have tried Mr. Smith on a different schedule. From these facts, the Court finds that the State trial court and the parties acted at all relevant times as if Mr. Smith's prior conviction was not vacated.

B. Conclusions of Law

Based on the record as a whole, the only evidence of vacatur of Mr. Smith's conviction amounts to the setting of bond upon his return to the local jail. But that fact standing alone fails to carry the day. Every other fact in the record, including Respondent's own actions, points in the direction that his conviction was not vacated. These facts include: (1) no vacatur appears on the docket; (2) no arraignment occurred; (3) Mr. Smith was not re-arrested; (4) no evidence of an agreement by the parties that the first conviction was vacated appears in the record; and (5) the prosecution and the State trial court acted as if the prior conviction was not vacated. Under D'Ambrosio, “what vacates a conviction is an entry in the court docket, which—depending on the state's procedures—is likely made through a court order, or clear actions by the court signifying a vacatur.” 656 F.3d at 388. Because no order vacating Mr. Smith's prior conviction appears on the docket and the State trial court's clear actions do not signify a vacatur, the Court determines that it has jurisdiction over Mr. Smith's motion to enforce the conditional writ. See Gillispie v. Warden, London Corr. Inst., 771 F.3d 323, 329 (6th Cir. 2014) (explaining that “in the absence of the parties’ agreement that a petitioner's conviction has been vacated, ‘[w]hat vacates a conviction is an entry in the court docket.’ ”).

As in D'Ambrosio, the totality of the circumstances here show that the prior conviction was not vacated. In Eddleman, by contrast, the State trial court re-arraigned the petitioner and held a bond hearing. 586 F.3d at 412. Further, counsel for the parties represented, and the State trial court agreed, that the petitioner's prior conviction was vacated. Id. No such agreement appears in the record here. Nor did the State trial court make any such finding. Accordingly, the Court determines that Petitioner's unconstitutional conviction was not vacated and that it has jurisdiction to adjudicate Petitioner's motion to enforce.

C. Additional Authorities

Because of the unusual procedural posture, the parties rely on, cite, and discuss various other authorities. The Court addresses the leading cases the parties raise, each of which reinforces the conclusion that the Court has jurisdiction to entertain Petitioner's motion to enforce the conditional writ.

In Pitchess v. Davis, 421 U.S. 482, 483 (1975) (per curiam), the district court issued a conditional writ of habeas corpus on a Brady claim, directing the respondent to release the petitioner from custody “unless California provided [the petitioner] with the laboratory report and moved to retry him within 60 days.” The laboratory report was turned over to the petitioner, but he also requested physical evidence from the prior trial (certain pathology specimens and the victim's clothing). Id., at 484. However, these items were discarded in the normal course. Id. After the State trial court found that the evidence had not been willfully suppressed and would not have materially aided the defense, the petitioner asked the district court to make its conditional writ absolute, and it did. The Ninth Circuit affirmed. Id., at 485–86.

Reversing the lower courts, the Supreme Court explained that the petitioner did not raise his argument regarding the unavailability of the physical evidence until preparing for the retrial in State court. Accordingly, it presented a new issue extraneous to the conditional writ, one which he had not exhausted. Id., at 487. In other words, the unconditional or absolute writ addressed a new or different constitutional violation rather than the Brady claim giving rise to the retrial. Here, the motion to enforce does not concern any issue other than compliance with the writ previously issued.

In Eddleman, the district court issued a conditional writ based on the use at trial of the petitioner's coerced statement. 586 F.3d at 411. On appeal, the Sixth Circuit affirmed and instructed the district court to order the petitioner's release unless the State retried the petitioner within a reasonable time. Id. The following month, the petitioner was rearrested and transferred from State prison to the county jail. Id. As noted, the parties and the State trial court agreed that the petitioner's prior convictions were vacated. Then, the State trial court held a bond hearing. When the trial date was continued, the petitioner moved in the district court to make the conditional writ absolute or unconditional, arguing that the State failed to retry him within a reasonable time. Id., at 412. The district court granted that request. On appeal, the Sixth Circuit held that the petitioner's unconstitutional conviction was vacated, divesting the federal courts of jurisdiction to enforce the conditional writ. On the record presented, the Sixth Circuit held that the State “began the process of his prosecution anew.” Id. Unlike in Eddleman, the State here elected to retry Mr. Smith within the prescribed time instead of releasing him and starting the prosecution over.

And in Gillispie, the petitioner obtained a conditional writ in federal district court on a Brady claim. The next day, the State released the petitioner. Later, parallel proceedings in State court resulted in vacatur of his conviction and an order for a new trial. In light of that development, the respondent dismissed his appeal to the Sixth Circuit but did not obtain vacatur of the conditional writ in the district court, which he later sought pursuant to Rule 60(b). In that procedural context, the Sixth Circuit held that the district court was divested of habeas jurisdiction when the Ohio Supreme Court declined to review the new trial order that the petitioner obtained in State court. 771 F.3d at 329. In other words, both the State and federal courts ordered a new trial, and the former action had the effect of superseding or taking priority over the writ. This procedural posture differs materially from the one presented here and offers little that is helpful in addressing the Court's jurisdiction.

At oral argument, Respondent also pointed to Fisher v. Rose, 757 F.2d 789 (6th Cir. 1985). There, the district court granted a conditional writ calling for the retrial of the petitioner. Although the State acted to comply with the writ by scheduling a trial date, the district court granted the petitioner's motion to modify the conditional writ and make it absolute after the petitioner argued that the State delayed in retrying him. But this case does not help Respondent. The Sixth Circuit did not hold that the district court lacked jurisdiction to enforce the writ but that it abused its discretion by barring retrial. Id. at 791. Moreover, in Fisher, the State court observed the formalities to vacate the unconstitutional conviction such that the petitioner was no longer in custody pursuant to that original conviction. Id.

Although these cases offer Respondent sound bites, taken out of context, that seem to offer support for her jurisdictional argument, analysis of the cases on their facts shows their limited application on the record presented here.

* * *

From the cases addressing a federal court's jurisdiction to enforce a conditional writ of habeas corpus, the key line that emerges is that a federal court may enforce the writ, but it may not go further. It cannot review claimed constitutional violations in a retrial, even if similar in character to the original error. See Pitchess, 421 U.S. at 489 (explaining that a petitioner must exhaust a new issue); Gillispie, 771 F.3d at 330 (declining to address whether the district court's order granting relief on Brady violations applied to the new trial that the State courts ordered). Consistent with this limitation, the Court proceeds to entertain Petitioner's motion to enforce but limits its analysis to whether the retrial complied with the conditional writ issued pursuant to the Sixth Circuit's mandate. It gives no consideration to any other claimed error.

ANALYSIS

The Sixth Circuit reversed the denial of Mr. Smith's habeas petition and remanded “with instructions that the district court issue Smith a writ of habeas corpus unless the State proceeds, within 180 days, to prosecute Smith in a new trial without utilizing Tolliver's identification of Smith, which shall be suppressed and excluded from evidence.” (ECF No. 33, PageID #3060.) Pursuant to the Sixth Circuit's mandate, the Court issued a conditional writ. (ECF No. 35.) Conditional writs “provide states with an opportunity to cure their constitutional errors, out of a proper concern for comity among the co-equal sovereigns.” Gentry, 456 F.3d at 692; see also Eddleman, 586 F.3d at 413 (quoting Satterlee v. Wolfenbarger, 453 F.3d 362, 369 (6th Cir. 2006)). “[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.” Id. (citing Smith v. Lucas, 9 F.3d 359, 366-67 (5th Cir. 1993); McQuillion v. Duncan, 253 F. Supp. 2d 1131, 1134 (C.D. Cal. 2003).)

I. Compliance with the Writ

“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 evaluate the prejudice to the petitioner by any noncompliance.” McKitrick v. Jeffreys, 255 F. App'x 74, 76 (6th Cir. 2007). “Substantial compliance with the terms of the order may be [a] sufficient” reason for the district court to deny the petitioner's request to execute the writ. Id.

I.A. The Sixth Circuit's Mandate

In a ruling dated July 31, 2024, the Sixth Circuit reversed the denial of Mr. Smith's petition for a writ of habeas corpus. (ECF No. 33.) In its twenty-six-page opinion, the panel majority focused its analysis on the victim's identification of Mr. Smith as the person who attacked her with a hammer, striking her in the head nearly killing her, and leaving her in a medically induced coma for approximately two weeks. The Court assumes familiarity with the Magistrate Judge's Report and Recommendation (ECF No. 26), its Opinion and Order overruling Petitioner's objections to the Report and Recommendation, adopting it, and denying relief (ECF No. 30), and the Sixth Circuit's ruling (ECF No. 33). Accordingly, the Court will not repeat the facts and record from the first trial in detail. Instead, it highlights a few points necessary to analyze the merits of Petitioner's motion.

Before trial in 2016, Petitioner moved to suppress “any eyewitness identification and testimony by Quortney Tolliver identifying Defendant out of court and in-court as her assailant on October 16, 2015.” (ECF No. 33, PageID #3039; ECF No. 7-1, PageID #109.) This motion arose out of the detective's interviews of and tactics with Tolliver. Two portions of the Sixth Circuit's ruling bear on the analysis of the merits of Petitioner's motion.

I.A.1. The Day of the Attack

When applying the factors under Neil v. Biggers, 409 U.S. 188 (1973), to assess the reliability of Tolliver's identification of Mr. Smith notwithstanding improperly suggestive procedures, the Sixth Circuit expressly discussed Tolliver's opportunity to view her assailant during the commission of the crime and found that this factor “clearly favors suppression.” (ECF No. 33, PageID #3048.) In doing so, the Sixth Circuit described Tolliver's trial testimony about the attack itself: “she ‘was so busy’ that she simply pushed at the handle of the screen door, immediately turned away to get her coat and shoes, and was hit by a hammer.” (Id.) “She turned back around to reach for her Taser, but was hit again and blacked out.” (Id.) At most, the Sixth Circuit noted, Tolliver had “a few seconds to view her assailant through the obstruction of a screen door”—circumstances the court thought do not confer reliability on any identification. (Id.)

Similarly, the Sixth Circuit determined that Tolliver's degree of attention also favored suppression. (Id.) “Tolliver was not focused on the assailant behind the screen door, but rather she was ‘busy’ and focused on gathering her coat and shoes. In fact, Tolliver told [the detective] that she ‘did not pay attention to if [the person at the door] pulled up or not.’ ” (Id., PageID #3049.) Further, after she was struck, Tolliver focused on trying to get her Taser for self-defense. (Id.) For the Sixth Circuit, these facts did not weigh in favor of the reliability of Tolliver's identification. (Id.)

I.A.2. Prior Relationship

Additionally, in looking at the totality of the circumstances, the Sixth Circuit examined how well Tolliver knew Mr. Smith before her attack. (Id., PageID #3053.) In doing so, the Sixth Circuit emphasized that “Tolliver had seen Smith one single day in the past.” (Id.) Further, the court looked to Tolliver's testimony at the suppression hearing that she did not know Mr. Smith well, only “just as well as [she] knew everybody else.” (Id.) It dismissed the couple of hours the two spent in a car driving from Ravenna to Cleveland and back as “at best, a minimal contributor to the reliability analysis.” (Id.; see also PageID #3055.)

I.A.3. Additional Discussion

In its lengthy opinion, the Sixth Circuit included a great deal of additional discussion of the reliability of Tolliver's identification. Again, the Court does not go through it all here. But the Sixth Circuit did observe that “Tolliver exhibited an extremely low level of certainty during [the officer's] initial confrontation” and roughly four months passed before Tolliver was able to identify Mr. Smith as the attacker. (Id., PageID #3050–51.) To drive home its point, the Sixth Circuit's majority concluded that “where eyewitness identifications rank among the most compelling evidence available to a jury and are the leading cause of wrongful convictions, such an unreliable identification should never have been presented at trial.” (Id., PageID #3057.)

* * *

Review of the Sixth Circuit's opinion demonstrates that the description of the new trial contemplated in its mandate—“without utilizing Tolliver's identification of Smith, which shall be suppressed and excluded from evidence” (id., PageID 3060)—references the motion to suppress “any eyewitness identification and testimony by Qourtney Tolliver identifying Defendant out of court and in-court as her assailant on October 16, 2015” (id., PageID #3039). The panel majority's endorsement of the State appellate court dissent on the suppression issue bolsters this conclusion. (Id., PageID #3041.)

The Sixth Circuit's mandate issued on September 12, 2024 (ECF No. 34), making the 180-day deadline for a new trial March 13, 2025.

I.B. Petitioner's Retrial

Petitioner's retrial commenced on February 24, 2025. At trial, the prosecution elicited testimony from Tolliver about the day of the attack. Specifically, it asked Tolliver to describe the person she saw arrive at her house and to identify him for the jury:

Q. Okay. Well, let me ask you this, did you go to the door to let someone in?

A. Yes.

Q. Describe for us the door. How many doors? Is it a screen door, a storm door? What is it?

A. An inside house door and a screen door outside.

Q. Okay. And when you approached them, what position were they in?

A. Standing right there.

Q. What's that?

A. Just standing at the door.

Q. Were they opened or closed?

A. Was the door op- --

Q. Were the doors open?

A. Oh, the doors. The inside was open. The screen door is always locked.

Q. So the storm door is open and I can look out of my screen door?

A. Yes.

Q. Did you see anyone standing there?

A. Yes.

Q. Who?

A. D.

Q. The gentleman you identified earlier today?

A. Yes.

(ECF No. 41-2, PageID #3265–66.) Then, the prosecution asked Tolliver a series of questions underscoring her ability to perceive the person at her door and emphasizing that she saw only one person at her door:

Q. Okay. This is late morning?

A. Yes.

Q. On the 16th?

A. Yes.

Q. Is the sun out?

A. Yes.

Q. Could you see clearly?

A. Yes.

Q. Did you see anyone standing next to D?

A. No.

Q. No. Okay. And as a result of seeing D, did you go to the door?

A. I did.

Q. And what did you do?

A. Unlocked it and pushed it open.

(Id., PageID #3266.)

Then, the narrative continued. After Tolliver testified that she let Mr. Smith into her trailer, she described the attack:

Q. Okay. When you opened the door, what did you do next?

A. I just pushed it open and went for my jacket.

* * *

Q. Okay. You turned to put the coat on?

A. Yes.

Q. What happens next?

A. I felt a stroke.

Q. Where did you feel it?

A. In the back of my head.

Q. Okay. As a result of being struck, were you rendered unconscious?

A. Yes.

Q. Okay. What do you remember after being knocked out? What do you remember next?

A. Waking up in the hospital.

(Id., PageID #3269–70.)

Before her testimony about the moments leading up to her attack, Tolliver identified Mr. Smith in court—not as her attacker, but as the person she knew as “D”:

Q. All right. This person that you knew as D, is he in the courtroom today?

A. Yes.

Q. Can you please describe for us where he's sitting and what he's wearing for the record?

A. He has on a brown and—suit with a yellow shirt, bald black man.

Q. Okay.

[THE PROSECUTOR]: Please let the record reflect, the witness has identified the Defendant?

THE COURT: It shall.

(Id., PageID #3223.) Mr. Smith's retrial resulted in a guilty verdict on March 12, 2025.

This record leaves no doubt that Tolliver identified Mr. Smith as her attacker. Indeed, that was the point of the testimony. In closing argument, the prosecution argued to the jury that Tolliver identified Mr. Smith as the last person she saw before the attack:

And, again, don't miss the big elephant in the room, Quortney Tolliver's own testimony. The last person she saw, the person she was gonna do a deal with, the person that she opens the door for or he opens the door, and then she wakes up in a hospital almost beaten to death.

(ECF No. 43-1, PageID #3626-27.) Even without the panel majority's language referencing Petitioner's motion to suppress, it is difficult to see how this record arguably complies with the Sixth Circuit's mandate that Mr. Smith's retrial proceed “without utilizing Tolliver's identification of Smith, which shall be suppressed and excluded from evidence.” (ECF No. 33, PageID #3060.) Indeed, in her brief opposing Petitioner's motion to enforce, Respondent focused on jurisdiction to the exclusion of any discussion of the merits. This record leaves the Court with no choice but to conclude that Petitioner's retrial suffers from the same constitutional error the Sixth Circuit identified in his first.

I.C. Other Merits Arguments

Notwithstanding this waiver (not forfeiture) of a defense on the merits, at oral argument, the Court offered Respondent the opportunity to address whether Petitioner's retrial complied with the mandate from the Sixth Circuit. Given the opportunity, Respondent offered a narrow interpretation of the Sixth Circuit's writ as foreclosing only Tolliver's direct identification of Mr. Smith as her attacker. But the testimony the prosecution elicited from Tolliver leaves no doubt about the effect of her testimony—she identified Mr. Smith as the person who hit her in the head with hammer. To the extent there is any doubt on the matter, and the record leaves no room for any, the State's closing argument confirms the point of Tolliver's testimony on direct. Opening statement confirmed as much too. In opening, the prosecution tells the jury what Tolliver's testimony will be in no uncertain terms:

Quortney will tell you that David let's her know that he arrives and that he's at the trailer park and that they're planning to go. Then she hears a knock at her trailer, that she opens the door. She sees David. And more importantly, she'll tell you she sees no one else, nobody but David Smith. Then she opens the door, or he opens the door, and she turns to get her shoes on and she is struck from behind by what investigators later believe is a hammer in the back of her skull.

(ECF No. 41-1, PageID #3191.) In short, Tolliver identified Mr. Smith as her attacker. Of course, the writ is not so narrow. It mandated “a new trial without utilizing Tolliver's identification of Smith”—not just her identification of Mr. Smith as her attacker. (ECF No. 33, PageID #3060.)

Additionally, Respondent offered something of a good-faith defense. Specifically, Respondent argued that the prosecution sought a pretrial ruling from the State trial court allowing Tolliver's testimony quoted above. Because of the narrow and circumscribed task at hand, borne of the principles of comity and federalism underlying the writ, the Court declines to undertake a full inquiry into the constitutional adequacy of the retrial, including the parties’ pretrial sparring in the State trial court before the retrial. As Respondent argued, any such undertaking must await any later habeas proceeding. And in the current posture, such an inquiry smacks of supervising the proceedings of a separate sovereign.

Instead, the Court takes the argument as simply that the State made good-faith efforts to comply, and that is enough. Respondent offered no authority supporting such a contention, which also overlooks the requirement for compliance with the “letter and the spirit” of the mandate. Mason v. Mitchell, 729 F.3d 545, 550 (6th Cir. 2013). Respondent waived any argument that the prosecution complied with the spirit of the writ, and the Court discerns no basis for such a claim on this record. Nor, in the Court's view, can either of these arguments support an argument that Respondent somehow substantially complied with the writ. For all these reasons, the Court finds that the State did not take sufficient actions pursuant to the conditional writ implementing the mandate from the Sixth Circuit to ensure that Mr. Smith receive a constitutionally adequate trial. Further, the prejudice to Petitioner is obvious on the face of the record. See McKitrick, 255 F. App'x at 76.

II. Jurisdiction and the Merits

Discussion of the merits brings matters full circle. Two issues remain for the Court to address.

II.A. D'Ambrosio

In D'Ambrosio, the Sixth Circuit identified compliance with a conditional writ as one circumstance divesting a district court of jurisdiction. 656 F.3d at 385. But Tolliver's testimony at the retrial forecloses any argument that the State complied or substantially complied with the letter or the spirit of the conditional writ issued pursuant to the Sixth Circuit's mandate. Simply put, Tolliver identified Mr. Smith, contrary to the plain language of the Sixth Circuit's ruling and mandate that any retrial occur without such testimony.

II.B. The Specifics of This Writ

The Court ends where it started when issuing the conditional writ pursuant to the Sixth Circuit's mandate and when it addressed the parties at the outset of oral argument on Petitioner's motion to enforce. The Court remains of the view that the Sixth Circuit's decision to issue the writ in this case rests on a misapplication of the standard in the Antiterrorism and Effective Death Penalty Act. The more time one spends with the record in this case, the more clear that conclusion becomes. But that is of no moment.

What matters is the writ the Sixth Circuit mandated the Court to issue. Unlike other writs that might require a new trial within a certain period of time, which provide an objective measure of compliance and limit the role of the federal courts consistent with the principles of federalism and comity for a separate sovereign's proceedings, the Sixth Circuit remanded “with instructions that the district court issue Smith a writ of habeas corpus unless the State proceeds, within 180 days, to prosecute Smith in a new trial without utilizing Tolliver's identification of Smith, which shall be suppressed and excluded from evidence.” (ECF No. 33, PageID #3060.) This direction requires some greater oversight than simply checking a State court docket to see whether a new trial occurred by the deadline (or substantially close to it). This writ provides more qualitative than quantitative relief. Such writs are unusual, but not unknown.

In another context, the Supreme Court spoke to how the federal courts proceed to implement and enforce such a writ. In Jennings v. Stephens, 574 U.S. 271 (2015), the Supreme Court considered whether a petitioner was required to file a cross-appeal to urge an alternative ground for relief. That specific question has no bearing here. But the Supreme Court's reasoning in resolving it speaks to the issue at hand both substantively and jurisdictionally. In Jennings, the State argued that a conditional writ of habeas corpus “does not merely entitle a successful petitioner to retrial, but it entitles him to retrial without the challenged error. Because each basis for habeas relief imposes an additional implied obligation on the State, each basis asserted by a successful petitioner seeks to lessen the State's rights at retrial, and therefore each additional basis requires a cross-appeal.” 574 U.S. at 277 (cleaned up).

Writing for the majority, Justice Scalia noted that this was “an unusual position” because a prevailing party enforces a judgment, not the reasoning supporting it. Id. Some circumstances, though atypical, Justice Scalia explained, offer support for the State's argument. “The State's argument might have force in a case where the district court explicitly imposes ․ a condition governing the details of the retrial.” Id.

On this point, Justice Thomas in dissent (joined by Justice Alito and Justice Kennedy) agreed with the majority. Id. at 284 (Thomas, J., dissenting). Where the dissent parted company with the majority came in its application in the context of conditional writs of habeas corpus. “Since its inception over a century ago,” a conditional writ entitles “a habeas petitioner not just to a new proceeding, but to a new proceeding that cures the specific defect identified.” Id. at 285–86.

Accordingly, a conditional writ does “not ‘permit a federal habeas court to maintain a continuing supervision over a retrial conducted pursuant to a conditional writ granted by the habeas court.’ ” Id. at 288 (quoting Pitchess, 421 U.S. at 490)). But a conditional writ does not permit a State to hold a person “under a new judgment infected by the same constitutional violation that justified the order's entry in the first place.” Id. (citing Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia, J., concurring)). For that reason, raising any other issue on appeal attempts to modify a petitioner's rights beyond the conditional writ and, in the dissent's view, requires a cross-appeal. Id.

Though obiter dictum in Jennings, the principles laid out there derive from longstanding and generally accepted habeas practice and jurisprudence, best articulate the jurisdiction of the federal courts to enforce a conditional writ, and dictate the outcome here. The Court retains jurisdiction to enforce the conditional writ, and Respondent may not hold Mr. Smith under a new judgment infected by the same constitutional violation that led to the issuance of the writ in the first place. Lest there be any doubt, the equitable ends of the writ dispense with Respondent's argument that the State now holds Mr. Smith pursuant to a different judgment. See Jennings, 574 U.S. at 287–88 (Thomas, J., dissenting); see also Withrow v. Williams, 507 U. S. 680, 717 (1993) (Scalia, J., concurring in part and dissenting in part). “Such an interpretation of habeas judgments would render the writ hollow.” Jennings, 574 U.S. at 288 (Thomas, J., dissenting).

CONCLUSION

Here, the Sixth Circuit determined that Petitioner was entitled to release or to a new trial uninfected by what it saw as the constitutional error attending Quortney Tolliver's identification of Mr. Smith. He received neither. For all these reasons, the Court determines that it has jurisdiction to entertain and rule on Petitioner's motion to enforce and GRANTS that motion (ECF No. 41), making the writ unconditional or absolute.

SO ORDERED.

J. Philip Calabrese United States District Judge Northern District of Ohio