In Girts v. Yanai, No. 08-4592, the Sixth Circuit faced a challenge to the district court's decision to grant an unconditional writ but not to bar retrial for the third time, following two overturned convictions due to prosecutorial misconduct.
As stated in the decision: "The court has noted three situations where federal courts have barred retrial of successful habeas petitioners: (1) where the act of retrial itself would violate the petitioner's constitutional rights, for example, by subjecting him to double jeopardy; (2) where a conditional writ has issued and the petitiioner has not been retried within the time period specified by the court; and (3) where the petitioner had served extended and potentially unjustifiable periods of incarceration before the writ was granted."
In rejecting defendant's argument that extraordinary circumstances exist to bar retrial, mostly by relying on the second situation, the court concluded that the failure to retry defendant within 180 days was not a violation of the conditional writ and it clearly provides that he could either be retried or released, and here, defendant was released once the district court determined that the government was out of time. Thus, district court was not found to have erred in concluding that the delay following defendant's successful heabeas petition rises to the level of "extraordinary circumstances."
- Full text of Girts v. Yanai