Case 1:16-cv-02023-JRS-DML Document 68 Filed 01/08/20 Page 1 of 5 PageID #: 1570

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN MYERS,

Petitioner,

v. 1:16-cv-02023-JRS-DML

WARDEN,
Indiana State Prison,

Respondent.

Motion to Extend Time to Comply with Conditional Writ

Respondent respectfully requests that this Court grant an extension of time

consisting of 60 days from the date the mandate is issued. In support of this motion,

Respondent submits the following:

1. On September 30, 2019, this Court granted a conditional writ of

habeas corpus and the Clerk entered judgment accordingly. The terms of the

conditional writ reads: “The State of Indiana shall vacate all criminal penalties

stemming from Mr. Myers’ murder conviction in Morgan Superior Court Case No.

55D02-0604-MR-000087 and release him from custody pursuant to that conviction

unless the State of Indiana elects to retry [ ] Mr. Myers within 120 of this final

judgment.” ECF 61.

2. The 120-day period expires on Monday, January 28, 2019.

3. On October 30, 2019, Respondent filed a Notice of Appeal, and on

January 8, 2019, Respondent filed his Brief of Appellant in Myers v. Neal, 19-3158.

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4. Respondent asks that this Court extend the time within which the

conditional writ may be satisfied until after the appeal is concluded. This Court has

discretion to alter that terms of a conditional writ of habeas corpus and to extend

the time for the State to comply with its terms. See Gilmore v. Betrand, 301 F.3d

581, 583 (7th Cir. 2002) (“Logically, the equitable power of the district court in

deciding a habeas corpus petition includes the ability to grant the state additional

time beyond the period prescribed in a conditional writ to cure a constitutional

deficiency.”). Extending the time will avoid wasting state judicial resources, avoid

potential conflicts of interest between attorneys, and allow the Seventh Circuit to

address a novel legal issue presented by this case.

5. First, extending the time will avoid initiating state proceedings that

may be unnecessary. If Respondent is successful and Myers’s conviction remains

valid, any additional state court proceedings would be unnecessary and a waste of

judicial resources. If the prosecutor is forced to initiate a retrial, the judge will be

required to appoint new defense counsel and transport Myers for hearings to

accomplish this. This would also likely mean that Myers would be housed in the

local jail rather than the Department of Correction while the appeal is pending. But

if the Seventh Circuit holds that the convictions were constitutional, there will be

no need for the state court to conduct these proceedings. Even if proceedings are

initiated in state court, a new trial will not occur until after the appeal is concluded

given that the new attorney will need to familiarize themselves with a case with a

large record and thousands of pages of discovery. The State is prepared to file a

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notice in state court to comply with this Court’s writ, but Respondent requests

additional time so that that compliance only uses state court resources when

necessary.

6. Second, initiating state court proceedings would require appointment

of counsel. This could set up potential conflicts with habeas counsel on the best

strategy going forward. Trial counsel may want to proceed differently in the trial

court than habeas counsel thinks is best. Further, the work done by trial counsel

would result in unnecessary work and expense if Myers convictions are upheld on

appeal.

7. Finally, Respondent’s appeal presents important issues of law that are

likely to succeed and have effects beyond the particular facts of this this case. This

Court applied the doctrine of “cumulative error” in a way that is novel. Respondent

respects this Court’s view of that issue, but disagrees that it can be used to grant

habeas corpus relief from a state court judgment. Given this question has not been

definitively decided by the Seventh Circuit or addressed by the United States

Supreme Court, the appeal presents an issue with unanswered questions. Because

this Court’s decision is predicated on a novel legal principle, the Court should

extend the time for the State to comply with the writ until after the appeal has

concluded.

8. In the alternative, if this Court decides to deny Respondent additional

time to comply with the writ, Respondent requests that this Court clarify what

action would constitute compliance with the writ. Respondent has filed this motion

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on the assumption that a filing must be made in state court to satisfy the writ;

however, if a filing in this Court of the State’s intention to retry Myers would satisfy

the writ, Respondent requests that this Court explicitly say that such a filing would

satisfy the writ.

9. Counsel contacted opposing counsel by email for Petitioner’s position

on this motion but did not receive a response.

Wherefore, Respondent requests that this Court extend the time of the

conditional writ to 60 days from the issuance of the mandate.

Respectfully submitted,

CURTIS T. HILL, Jr.

Attorney General of Indiana
Atty. No. 13999-20

s/ Andrew A. Kobe
Andrew A. Kobe
Deputy Attorney General
Atty. No. 22427-02

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CERTIFICATE OF SERVICE

I hereby certify that on January 8, 2020, I electronically filed the foregoing

with the Clerk of United States District Court for the Northern District of Indiana
by using the CM/ECF system. All participants in the case registered with the
CM/ECF system have been served electronically through the CM/ECF system.

s/ Andrew A. Kobe
Andrew A. Kobe
Deputy Attorney General
Atty. No. 22427-02

OFFICE OF THE ATTORNEY GENERAL

Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, Indiana 46204
317-233-3349(voice)
317-232-7979 (facsimile)
Andrew.Kobe@atg.in.gov