DaSilva v. District Court of the Eight Judicial District, Cascade et al

Filing 44

ORDER denying 43 Motion. Signed by Judge Donald W. Molloy on 6/3/2014. Mailed to DaSilva. (TAG, )

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREA T FALLS DIVISION
ROBERT AYRES DASILVA, JR.,

JUN 0 3 201~
Cle~, l!. S District Court
District Of Montana
Missoula

CV 13-25-GF-DWM-RKS

Petitioner,
ORDER

vs.
WARDEN SAM LAW; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

Robert Ayres DaSilva, Jr. requests this Court amend its order conditionally
granting habeas relief, (Doc. 37), to dismiss his underlying state conviction instead
of vacating his judgment of conviction. (Doc. 43). DaSilva once again requests
immediate release and that this Court order that the State proceedings may not be
renewed against him. Such relief is not warranted for the reasons discussed in this
Court's order of May 28, 2014. (Doc. 42.) Further, the United States Supreme
Court "has repeatedly stated that federal courts may delay the release of a
successful habeas petitioner in order to provide the State an opportunity to correct
the constitutional violation found by the court." Hilton v. Braunskill, 481 U.S.
770,775 (1987); see In re Bonner, 151 U.S. 242,259-60 (1894) (recognizing for

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the first time that the habeas court had the power to retain the petitioner in
conditional custody before granting relief). "Such conditional orders are
essentially accommodations accorded to the state, in that conditional writs enable
habeas courts to give States time to replace an invalid judgment with a valid one."

Harvest v. Castro, 531 F.3d 737, 742 (9th Cir. 2008) (internal quotation marks,
citations, and brackets omitted). If the State fails to act within the prescribed time
period, the petitioner is released. Id. As the 60-day period accorded to the State
has not lapsed, DaSilva's continued custody comports with the law. Additionally,
the State has been given 21 days to respond to his request for bail.
Accordingly, IT IS ORDERED that DaSilva's motion (Doc. 43) is
DENIED.
Dated this 3 rd day of June, 2014.

''''''-LI~:vy,

District Judge
United States District Court

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