1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICHARD DEAN CLARK, Case No. 3:97-cv-20618 (WHO) Petitioner, CAPITAL CASE 8 v. 9 ORDER GRANTING MOTION TO 10 OAK SMITH, Acting Warden of California EXTEND TIME FOR RESENTENCING State Prison at San Quentin, Re: Dkt. No. 600 11 Respondent.

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13 I granted Petitioner partial habeas relief on July 14, 2022, ordering Respondent either to 14 vacate Petitioner’s death sentence and resentence him in accordance with the United States 15 Constitution and California law or to commence proceedings to retry his penalty phase within one- 16 hundred and twenty days of the order. (Dkt. No. 595.) I have now granted two requests to extend 17 the deadline, allowing the State until March 31, 2023, to complete the conditions of the habeas 18 relief order. (Dkt. No. 597; Dkt. No. 599.) Respondent requests an additional extension until June 19 1, 2023, to complete the resentencing. For good cause shown, the motion is granted. 20 Petitioner and Respondent agree that the State originally needed more time to comply with 21 my order, and Petitioner subsequently required additional time to challenge the special 22 circumstance found in his case. (Dkt. No. 600 at 1; Dkt. No. 601 at 1-2.) The parties agreed to a 23 hearing in state court on March 14, 2023, during which the superior court denied the motion to 24 strike the special circumstance. (Dkt. No. 600 at 2.) The court at the hearing also “determined 25 that life without the possibility of parole would be imposed for the murder charge that was the 26 subject of the writ.” (Id.) The superior court, however, did not impose a sentence or restitution 27 fines for Petitioner’s rape conviction under the same indictment because it required a new 1 probation report. (Id.; Dkt. No. 602 at 1.) Respondent requests additional time from me for the 2 superior court to complete the sentencing process at a hearing set for May 9, 2023. (Id.) 3 Petitioner opposes the request for an extension of time, arguing that Respondent has not 4 properly requested the extra time through a motion pursuant to Federal Rule of Civil Procedure 5 60(b). (Dkt. No. 601 at 2.) Petitioner relies on Harvest v. Castro, 532 F.3d 737 (9th Cir. 2008), 6 which required such a motion to modify a conditional writ of habeas corpus. Arguing that 7 Respondent failed to meet the conditions of the original writ, Petitioner asks me to issue an order 8 directing the State to “resentence Petitioner within 60 days to life without parole for first degree 9 murder, or any lesser sentence available under state law, or release [Petitioner].” (Id. at 3.) 10 In the original habeas proceeding detailed in Harvest, the Ninth Circuit granted the 11 petitioner habeas relief, instructing the district court to order the state “to release the petitioner 12 unless the state either modifies the conviction to one for second degree murder or retries the 13 petitioner.” Harvest, 531 F.3d at 740. The state did not commence proceedings as directed by the 14 conditional writ from the district court within the allowed time period. Id. Two months after the 15 deadline had passed, the state’s attorney admitted that he had committed a “professionally 16 inexcusable” error by assuming that he did not have to inform the district attorney of the federal 17 court’s order. Id. at 740-41. The Ninth Circuit concluded that in order to request modification of 18 a conditional writ of habeas corpus whose time has elapsed, a party must file a motion pursuant to 19 Federal Rule of Civil Procedure 60(b), which “allows a party to seek relief from a final judgment, 20 and request reopening of his case, under a limited set of circumstances including fraud, mistake, 21 and newly discovered evidence.” Id. at 744-45 (quoting Gonzales v. Crosby, 545 U.S. 524, 528 22 (2005)). The state in Harvest did not satisfy any of the Rule 60(b) provisions that would have 23 allowed for modification of the order, so the Ninth Circuit ordered the state to release the 24 petitioner. Id. at 750. 25 Harvest is distinguishable from the present case. After receiving two agreed-upon 26 extensions to the deadline proposed by the conditional writ, the State essentially complied with my 27 order, vacating the death sentence and commencing proceedings to resentence Petitioner on March 1 superior court denied Petitioner’s motion to strike the special circumstance and stated its intent to 2 sentence Petitioner to life without the possibility of parole, as required by state law for a first- 3 degree murder conviction with a finding of a special circumstance. (d. at 3.) That the State has 4 || not completed the resentencing, for want of a probation report addressing the convictions under 5 the indictment not affected by the conditional writ, does not undermine the fact that it has 6 || commenced proceedings as required and has vacated Petitioner’s death sentence. See Fisher v. 7 || Rose, 757 F.2d 789, 791 (6th Cir. 1985) (“A conditional grant of a writ of habeas corpus requires 8 || the petitioner’s release from custody if new proceedings are not commenced by the state within 9 || the prescribed time period.”). Petitioner cannot dispute that the State has commenced proceedings 10 || to resentence him in compliance with the United States Constitution and California law. The State 11 should be allowed time to complete that process. 12 For good cause shown, the motion for extension of time is GRANTED, and the time for 13 the resentencing of Petitioner ordered on July 14, 2022, is hereby extended to June 1, 2023.

IT IS SO ORDERED.

3 15 Dated: April 26, 2023

18 liam H. Orrick United States District Judge 19 20 21 22 23 24 25 26 27 28