United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
Christopher Richardson, by counsel, filed an emergency motion
for issuance of a writ of habeas corpus, seeking his
immediate release from custody. [DE 39]. By way of
background, Richardson previously filed a habeas corpus
petition challenging his 2011 Lake County conviction for
aggravated battery. This Court denied his petition, and
Richardson appealed. On August 8, 2017, the Seventh Circuit
issued an opinion reversing this Court's decision,
holding that Richardson's Confrontation Clause rights
were violated at trial. [DE 35-1]. The Seventh Circuit
concluded its opinion by ordering “that unless the
state initiates proceedings to retry Richardson within
120 days, he is entitled to issuance of the writ.”
Id. at 18 (emphasis added). A judgment containing
that same language was entered the same day. [DE 35-2]. After
the court denied a petition for rehearing, the mandate issued
on September 15, 2017, and was entered in this Court that
same day. [DE 35].
Seventh Circuit ordered that the state had to act within 120
days to avoid the issuance of the writ, but it did not
specify within 120 days of what. Richardson argues
that the time began running when the Seventh Circuit issued
is opinion and judgment, so he filed this motion seeking his
immediate release when the state failed to initiate
proceedings to retry him within 120 days of that date. In
response, the state argues that the 120 days began running
upon the issuance of the mandate, so the time for it to act
has not yet expired. Despite the parties' arguments that
the language unambiguously supports their competing
positions, the Court finds the language to be ambiguous.
Consistent with the only case of which the Court is aware
that has addressed this issue directly, the Court resolves
that ambiguity by interpreting the 120 days as beginning to
run upon the issuance of the mandate, meaning Richardson is
not yet entitled to the writ.
begins by noting that, when reversing the denial of habeas
relief, the Seventh Circuit sometimes specifies that the time
period for the state to act will run from the “issuance
of the mandate.” E.g., Shaw v.
Wilson, 721 F.3d 908, 919-20 (7th Cir. 2013). He then
argues that because the court omitted that language here, it
must have intended a different result, meaning the time
should run from the entry of judgment. However, the Seventh
Circuit also sometimes specifies that the time period runs
from the date of its opinion. E.g., Wieland v.
Buss, 185 Fed.Appx. 527, 530 (7th Cir. 2006) (ordering
the district court to issue the writ unless the state retries
the defendant “within 120 days from the date of the
issuance of this opinion”); Ben-Yisrayl v.
Davis, 431 F.3d 1043, 1053 (7th Cir. 2005) (“We
remand with instructions to grant the writ unless the State
of Indiana elects to retry him within 120 days from the
issuance of this opinion.”); Owen v.
Duckworth, 727 F.2d 643, 648 (7th Cir. 1984) (ordering
the district court to issue the writ “unless the
petitioner is brought to trial in the Indiana state courts
within ninety days of the date of this opinion”). And
in many cases, as here, the orders do not specify any
particular date from which the time period begins to
E.g., Kubsch v. Neal, 838 F.3d 845, 862
(7th Cir. 2016) (en banc) (remanding for issuance of the writ
“unless the state within 120 days takes steps to give
[the petitioner] a new trial”). The decisions do not
offer any explanation for the particular instructions they
offer, either. Thus, the Court cannot draw a conclusion in
either direction from the Seventh Circuit's silence in
also cites two cases in which the Seventh Circuit used
language similar to the language it used here, and the
district courts subsequently issued orders using the date of
the judgment as the starting point. In Goodman v.
Bertrand, the Seventh Circuit reversed the district
court's denial of habeas relief and ordered that he was
entitled to be released unless the state retried him
“within 120 days.” 467 F.3d 1022, 1031 (7th Cir.
2006). Once the mandate issued, the district court entered an
order setting a date certain for the state to act, and the
date it used was 120 days from the Seventh Circuit's
opinion and judgment, not the mandate. Goodman v.
Bertrand, No. 2:00-cv-650, DE 55 (E.D. Wis. Dec. 7,
2006). A similar sequence occurred in Goudy v.
Basinger, 604 F.3d 394 (7th Cir. 2010).
however, neither of those district courts were called upon to
resolve a dispute as to when the period began. Rather, they
each entered orders shortly after the issuance of the mandate
that set future dates by which the state had to act. Perhaps
the courts concluded that Richardson's position is
correct, or perhaps they just chose the earlier of the
potential dates in order to avoid any future dispute. But in
either event, the district court's orders do not contain
any analysis on this subject, so those orders offer little
weight. And second, other district courts in the same
circumstances have used later dates as the operative dates.
In Gentry v. Sevier, for example, the Seventh
Circuit reversed and remanded with instructions to release
the defendant if the state elected not to retry him
“within 120 days.” 597 F.3d 838, 852 (7th Cir.
2010). Upon remand, the district court entered an order
requiring the state to act “[w]ithin 120 days of this
order.” Gentry v. Superintendent, No.
3:06-CV-350-PPS, DE 40 (N.D. Ind. Mar. 29, 2010). See
also Smith v. Grams, 565 F.3d 1037 (7th Cir. 2009)
(prompting a similar sequence). In addition, in
Kubsch, the Seventh Circuit reversed and remanded
with instructions to issue the writ “unless the state
within 120 days takes steps to give Kubsch a new
trial.” 838 F.3d at 862. The court then stayed the
mandate on several occasions but never modified the judgment.
Once the mandate issued, the district court entered an order
requiring the state to act by a date certain that was 120
days from the date of the mandate. Kubsch v.
Superintendent, No. 3:11-CV-42-PPS, DE 55 (N.D. Ind. May
30, 2017). Thus, these district court orders do not establish
a consensus in either direction.
parties also seek support from the Federal Rules of Appellate
Procedure, but nothing in those rules resolves this
ambiguity. Rule 26 governs the computation of time, but it
defines the time periods by reference to “the event
that triggers the period, ” Fed. R. App. P.
26(a)(1)(A), which is the issue in dispute here, so that rule
sheds no light. Richardson notes that the rules use the date
of the entry of judgment as the reference point for various
deadlines, such as for petitions for rehearing, R. 40(a)(1),
or a bill of costs, R. 39(d)(1). See also Sup. Ct.
R. 13.1 (requiring petitions for writs of certiorari to be
filed within 90 days after “entry of the
judgment”). None of those events are relevant to the
issue here, though.
addition, as the state notes, the date of the issuance of the
mandate is consequential as well, as that is the date the
court of appeals' order becomes final and is sent to the
district court, and the date the district court regains
jurisdiction over the case. Kusay v. United States,
62 F.3d 192, 194 (7th Cir. 1995) (“Just as the notice
of appeal transfers jurisdiction to the court of appeals, so
the mandate returns it to the district court. Until the
mandate issues, the case is ‘in' the court of
appeals, and any action by the district court is a
nullity.”). Until then, the court of appeals retains
authority to modify its ruling and the district court lacks
jurisdiction to begin implementing it. Id. And under
Rule 41, the mandate “is effective when issued, ”
and consists of “a certified copy of the judgment [and]
a copy of the court's opinion, ” R. 41(a), (c),
which could suggest that (at least absent an indication to
the contrary) the 120-day period reflected in the judgment
becomes effective and starts running on the date the mandate
issues. See also Fed. R. App. P. 41 advisory
committee's note to 1998 amendments (stating that the
date the mandate issues is “the time the parties'
obligations become fixed”).
clear guidance in either direction, the Court is left to
decide which way to interpret this ambiguous language.
Neither party has cited a case that actually confronts that
question. However, the Ninth Circuit addressed this very
question in Miles v. Stainer, 141 F.3d 1351 (9th
Cir. 1998). There, a previous panel had reversed the denial
of habeas relief with instructions to grant the writ unless
the state acted “within 60 days, ” but it did not
specify when that period began running. Id. at 1352.
On remand, the state acted within 60 days of the mandate but
not of the judgment, and the district court held that the
state's action was timely. Id. The petitioner
appealed again, and the Ninth Circuit affirmed. It recognized
that there is no particular date that a court of appeals must
use as the reference point, and that both the date of the
judgment and the date of the mandate “are plausible
‘trigger' dates.” Id. To resolve the
ambiguity in the previous panel's order, the court
established a default rule that, “in the absence of an
explicit instruction to the contrary, the clock starts
running when the mandate issues.” Id.
court explained as follows:
This “default rule” recognizes that the issuance
of the mandate is “an event of considerable
institutional significance.” United States v.
Rivera, 844 F.2d 916, 921 (2d Cir. 1988). Until then,
this court retains jurisdiction, see Sgaraglino v. State
Farm Fire & Cas. Co., 896 F.2d 420, 421 (9th Cir.
1990), and is capable of modifying or even revoking a
judgment, see United States v. Foumai, 910 F.2d 617,
620 (9th Cir. 1990), thereby rendering moot any intervening
action by the state court.
Were we to hold otherwise, a state court might feel compelled
to commence proceedings as soon as we filed an initial
opinion. These efforts would be wasted if we subsequently
amended the opinion in a material way. Thus, our default rule
makes practical sense of ambiguous instructions to state
courts. Additionally, by interpreting an ambiguous
instruction in the light most favorable to the party whose
rights stand to be cut off, our default rule achieves a
particularly equitable result.
The default rule can, of course, be overridden by the
insertion of express contrary language in an opinion.
Nevertheless, when such language is missing, we presume that
the panel intended to start ...