Ochs v. Gentry et al

Filing 66

ORDER that Petitioner Melanie Ochs writ of habeas corpus is GRANTED. The judgment of conviction filed on 2/11/2010, in case number C227324, in the Eighth Judicial District Court for the State of Nevada is VACATED. Petitioner Melanie Ochs shall be rel eased from all custody and/or other restraints, including parole or other supervision, unless the state, through the respondents, files a written election in this matter within 30 days of the date of this order of its intention to retry Ochs and ther eafter commences jury selection in the retrial within 120 days following the election to retry Ochs, subject to reasonable requests for modification of the time periods. IT IS FURTHER ORDERED that the Clerk of Court provide a copy of this order to the Clerk of the Eighth Judicial District Court in connection with that courts case number C227324. Signed by Judge James C. Mahan on 1/17/2023. (Copies have been distributed pursuant to the NEF - mailed certified Order to 8th JD - TRW)

Case 2:16-cv-00982-JCM-DJA Document 66 Filed 01/17/23 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

4 MELANIE OCHS,
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Case No.: 2:16-cv-00982-JCM-DJA
Petitioner,

ORDER

6 v.
7 JERRY HOWELL, et al.,
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Respondents.

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Petitioner Melanie Ochs sought a writ of habeas corpus under 28 U.S.C. § 2254 based, in

11 part, on claims that the state district court used erroneous jury instructions. (ECF No. 18.) This
12 court denied Ochs’ petition but granted Ochs a certificate of appealability. (ECF No. 58.) Judgment
13 was entered on September 21, 2021, and this case was closed. (ECF No. 59.) Ochs appealed, and
14 the Ninth Circuit Court of Appeals reversed and remanded this case, finding that it had “‘grave
15 doubt’ whether the instructional error ‘had substantial and injurious effect or influence in
16 determining the jury’s verdict.’” (ECF No. 62.) As such, the Ninth Circuit Court of Appeals
17 “reverse[d] and instruct[ed this court] to grant the writ unless Ochs is retried.” (Id.) In accordance
18 with the Ninth Circuit Court of Appeals’ memorandum, this court grants the writ of habeas corpus.
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IT IS THEREFORE ORDERED that Petitioner Melanie Ochs’ writ of habeas corpus is

20 GRANTED. The judgment of conviction filed on February 11, 2010, in case number C227324, in
21 the Eighth Judicial District Court for the State of Nevada is VACATED. Petitioner Melanie Ochs
22 shall be released from all custody and/or other restraints, including parole or other supervision,
23 unless the state, through the respondents, files a written election in this matter within 30 days of

Case 2:16-cv-00982-JCM-DJA Document 66 Filed 01/17/23 Page 2 of 2

1 the date of this order of its intention to retry Ochs and thereafter commences jury selection in the
2 retrial within 120 days following the election to retry Ochs, subject to reasonable requests for
3 modification of the time periods.
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IT IS FURTHER ORDERED that the Clerk of Court provide a copy of this order to the

5 Clerk of the Eighth Judicial District Court in connection with that court’s case number C227324.
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Dated: January 17, 2023

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JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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