Comstock v. Humphries et al

Filing 45

ORDER reversing 32 Order Dismissing Case and 33 Judgment, and granting petitioner's application for a writ of habeas corpus. Clerk shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 10/28/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STEPHEN D. COMSTOCK,
Petitioner,

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3:10-cv-00147-LRH-WGC

vs.

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ORDER
STEFANIE HUMPRHIES, et al.,

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Respondents.
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On February 14, 2014, this court denied all claims with prejudice in this petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 32). Judgment was entered on that date (ECF

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No. 33). Petitioner Stephen D. Comstock appealed, and on May 12, 2015, the Ninth Circuit Court of

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Appeals issued an order reversing and remanding with instructions to this court that the writ of habeas

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corpus be granted (ECF No. 39). The order further directed that Comstock shall be released from

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probationary custody unless the State notified this court within thirty (30) days of its intent to retry him

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and commences retrial within ninety (90) days. Id. After a petition for reconsideration was denied, the

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mandate issued on June 29, 2015, and was ordered spread upon the records of this court on July 8, 2015

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(ECF Nos. 41, 42, 43).

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On August 27, 2015, counsel for petitioner filed a notice of state proceedings (ECF No. 44).

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He indicated that the state district court held a hearing on July 29, 2015, at which petitioner was

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represented by the local public defender. Id. At that hearing, the district attorney informed the court

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that the State would not seek a retrial, and the state district court dismissed the case with prejudice.

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Id. Counsel for petitioner attached the written order dismissing the case with prejudice, which was

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entered on August 13, 2015 (ECF No. 44-1).

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IT IS THEREFORE ORDERED that this court’s order and judgment dated February 14, 2014

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are REVERSED. Petitioner’s application for a writ of habeas corpus is GRANTED. Petitioner’s

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conviction and sentence are set aside, and he is released from custody. The Clerk shall enter judgment

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accordingly.

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Dated this 28th day of October, 2015.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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