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Harvest v. Castro, No. 05-16879 (3-27-09). A district court can modify a conditional grant of a writ, even after the time for its relief has lapsed, but it must be done under Fed R Civ P. 60. Here, the petitioner was granted relief from his first degree murder conviction. The petitioner's sixth amendment rights were violated when the court admitted a co-accomplice's statement. The writ ordered petitioner's release unless the state lessened the conviction to second degree or retried the petitioner within sixty days. The state's AG got the order, and filed it away. He never notified the district attorney of the county where the case was tried. After the time lapsed, the state moved pro nunc for a modification. The district court granted. The 9th (Tashima) held that the court did have jurisidction, even after the 60 days lapsed, because of equity. The court still retained jurisidiction. The jurisdiction is controlled though by Fed.R.Civ.P. 60. Yet, under Rule 60, the state was out of luck: this wasn't a mistake by the court; there wasn't a change in law; and the catch-all didn't apply. The district court is reversed, and the petitioner is released. The state, though, could rearrest and retry him.

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