Harvest

BACKGROUND

Joshua Harvest was convicted of first-degree murder in California Superior Court. After exhausting his state reme- dies, Harvest challenged his conviction in a federal habeas action on the ground, among others, that the trial court had violated his right of confrontation under the Sixth and Four- teenth Amendments by improperly admitting Harvest’s accomplice’s hearsay testimony. We granted relief on that ground and remanded the case, directing “the district court to order the state to release the petitioner unless the state either modifies the conviction to one for second degree murder or retries the petitioner.” Harvest v. Castro, 121 F. App’x 216, 220 (9th Cir. 2005). Consistent with our mandate, the district court issued a conditional writ ordering the State to release Harvest “within sixty (60) days of the date of this Order unless within that period of time the state initiates proceed- ings to either modify the conviction to one for second degree murder or to retry Petitioner.”

The State did not initiate proceeding to modify the convic- tion, nor did it release Harvest within sixty days from the date of the district court’s order. The State’s lawyer admits that…