Full opinion text
MEMORANDUM OF OPINION AND ORDER KATHLEEN McDONALD O’MALLEY, District Judge. Before the Court is a Joint Motion for Extension of Time to Comply with the Mandate to Retry Petitioner (ECF No. 211), filed by the Respondent (hereinafter, “the Warden”) and the Cuyahoga County Prosecutor’s Office (hereinafter, “the State”) on March 4, 2009. On September 11, 2008, this Court issued a conditional writ of habeas corpus instructing the State to either set aside Petitioner Joe D’Ambrosio’s (hereinafter, “D’Ambrosio”) conviction and death sentence or retry him within 180 days. (ECF No. 209.) Although the 180-day deadline imposed by the Court’s conditional writ was set to expire on March 10, 2009, the Warden and the State asked the Court to continue that deadline. On March 5, 2009, following an on-the-record discussion with the parties, the Court issued a preliminary ruling extending its mandate for the limited purpose of allowing the parties sufficient time to file briefs and present testimony on this request in an evidentiary hearing. (ECF No. 217.) For the following reasons, the Court DENIES THE REQUEST TO EXTEND THE EXISTING MANDATE and ORDERS D’AMBROSIO’S RECORD EXPUNGED, but will NOT BAR THE STATE’S REPROSECUTION of D’Ambrosio. Accordingly, the Court issues an unconditional writ of habeas corpus and orders the expungement of the existing state criminal records, but does not prohibit the State from proceeding with a reprosecution of D’Ambrosio to the extent the state courts continue to authorize such action. The Court delays its issuance of an unconditional writ for fifteen (15) days from the date of this Order, to allow time for the state trial court to resolve any bond issues raised by this ruling. I. Procedural History A. Initial State Court Proceedings This case has a lengthy history that is discussed in detail in this Court’s prior rulings. See D’Ambrosio v. Bagley, No. 00-CV-2521, slip op., 2006 WL 1169926 (N.D.Ohio Mar. 24, 2006). The Court, accordingly, only summarizes certain pertinent facts here. On September 24, 1988, a jogger found the body of Estel Anthony Klann in Doan Creek in Cleveland, Ohio. Shortly thereafter, on October 6, 1988, D’Ambrosio was indicted along with codefendant Thomas Michael Keenan (hereinafter “Keenan”), and charged with aggravated capital murder. D’Ambrosio pleaded not guilty to the charges and proceeded to trial before a three-judge panel on February 6, 1989. The trial court sealed the verdict on February 9, 1989, until the resolution of Keenan’s trial. On February 21, 1989, largely on the testimony of a third co-defendant, Edward Espinoza (hereinafter, “Espinoza”), the court pronounced D’Ambrosio guilty on all counts. On February 23, 1989, the court sentenced D’Ambrosio to death. The Ohio Supreme Court upheld the conviction and sentence on appeal. State v. D’Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909 (1993). Keenan’s trial proceeded before a jury, which found him guilty of aggravated murder and sentenced him to death. On direct appeal, the Ohio Supreme Court reversed Keenan’s conviction. State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993). After retrial, Keenan again was convicted and sentenced to death in 1993. The Ohio Supreme Court upheld this conviction and death sentence. State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998). B. Federal Habeas Proceedings 1.The Petition and Evidentiary Hearing After his state court appeals and post-conviction efforts concluded, D’Ambrosio filed a notice of intent to file a petition for a writ of habeas corpus with this Court on October 3, 2000. (ECF No. 1.) After filing a petition, (ECF No. 22), D’Ambrosio subsequently filed an amended petition that included a claim pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (ECF No. 81.) D’Ambrosio also requested and received discovery pertaining to his Brady claim. (ECF No. 100.) On December 2, 2002, the Court ordered the Cuyahoga County Prosecutor, the Cuyahoga County Coroner, the Cleveland Police Department, and the Cleveland Heights Police Department to provide D’Ambrosio’s habeas counsel with materials in their possession. Of particular relevance to the instant proceedings, the Court instructed the State to provide the following: 1. The complete and unredacted case files in the matter of State v. D’Ambrosio, Case No. CR 232189-A. 2. The complete and unredacted case files in the matter of State v. Keenan, Case No. CR 232189-B. 3. The complete and unredacted case files in the matter of State v. Espinoza, Case No. CR 232189-C. 4. The complete and unredacted case materials in the possession of the Cuyahoga County Coroner, Case No. 201989; Autopsy Case No. 57381 as well as all materials collected and reports made by the investigating S.I.U. unit; * * * 6. Any and all reports noting the collection and/or testing or test results of biological evidence, including but not limited to D.N.A., blood, saliva, semen, hair, fingernail scrapings that may be in the possession of the Cuyahoga County Coroner and the Cuyahoga County Prosecutor S.I.U. which were collected in relation to the investigation of Anthony Klann’s murder. (ECF No. 100, at 1-2) (emphasis added). After believing he had acquired all Court-ordered discovery, D’Ambrosio filed a motion for summary judgment and a motion for an evidentiary hearing. (ECF Nos. 114; 116.) In an Order dated March 4, 2004, the Court denied D’Ambrosio’s motion for summary judgment without prejudice, but granted the motion for an evidentiary hearing on three of the grounds for relief raised in the petition: actual innocence, spoliation of evidence, and the Brady claim. (ECF No. 158.) The Court held a three-day evidentiary hearing, during which D’Ambrosio developed his Brady and spoliation claims by establishing that the State withheld and/or did not produce evidence that both undermined the State’s theory of how the murder occurred and implicated another individual’s motive to commit it. Trial counsel Ralph DeFranco testified that, had he been in possession of the alleged Brady evidence prior to trial, he could have impeached several of the prosecution’s witnesses, especially their most crucial witness, Espinoza. Habeas counsel also attempted to demonstrate D’Ambrosio’s actual innocence through the testimony of four alibi witnesses who testified that they were with D’Ambrosio on the night of Klann’s murder. (ECF No. 193, at 10-17.) 2. The Court’s Order Granting D’Ambrosio’s Petition The Court issued an Opinion granting in part and denying in part D’Ambrosio’s petition on March 24, 2006. (Id.) The Court found that D’Ambrosio’s actual innocence claim was not well-taken, in large measure because of the extraordinarily high standard of review applied to such a claim. The Court reasoned that D’Ambrosio could not demonstrate that he was “probably innocent” under the Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), standard of actual innocence because of certain discrepancies between the evidentiary hearing witnesses’ testimony and D’Ambrosio’s own trial testimony. (Id. at 76.) The Court did, however, issue a conditional writ of habeas corpus based on the State’s Brady violations. The Court held that the State failed to provide D’Ambrosio with: (1) information that another individual, Paul “Stoney” Lewis, had a motive for killing Klann; (2) reports indicating that two detectives initially assigned to the Klann murder investigation concluded that Klann actually had been killed elsewhere and his body subsequently dumped at Doan Creek; (3) a cassette tape of a call to police from Angelo Crimi, who implicated other suspects in Klann’s murder; (4) trace evidence reports indicating that Klann was not wearing shoes or undershorts when his body was discovered; and (5) a police report in which Linda Hudak stated that she saw Klann alive the night after the State asserted Klann was killed. (ECF No. 193, at 62.) Because of these violations, the Court ordered the Respondent either to set aside D’Ambrosio’s conviction for aggravated murder and his sentence of death or to retry him within 180 days. (Id. at 107.) On its own motion, the Court stayed its issuance of the conditional writ pending the parties’ appeal. The parties cross-appealed the Court’s decision, which the Sixth Circuit affirmed in D’Ambrosio v. Bagley, 527 F.3d 489, 499 (6th Cir.2008). The Sixth Circuit found that, “[bjecause the evidence that the prosecution suppressed would have had the effect of both weakening the prosecution’s case and strengthening the defense’s position that someone else committed the murder, there is a reasonable probability that the outcome of the trial could have been different.” Id. It thereafter issued its mandate. (ECF No. 208.) On September 11, 2008, this Court issued an order in compliance with the Sixth Circuit’s mandate, stating that, “[t]he Respondent shall either: (1) set aside D’Ambrosio’s convictions and sentences as to all counts of the indictment, including the sentence of death; or (2) conduct another trial. This shall be done within 180 days from the effective date of this Order.” (ECF No. 209.) The Court also lifted the stay of the proceedings, permitting D’Ambrosio’s retrial to go forward. (Id.) C. The State Court Retrial In September, 2008, the State requested a retrial, which Cuyahoga County Common Pleas Court Judge Joan C. Synenberg set for March 2, 2009, eight days before the expiration of the conditional writ. Defense counsel filed a motion for discovery on November 3, 2008 and a supplemental motion for discovery on December 23, 2008. (ECF Nos. 222-3; 222-4.) The State did not respond in writing to either request. In early January 2009, D’Ambrosio’s counsel asked the State for an inventory of all materials in its possession, but the State declined to provide one. Instead, the State turned over a searchable, indexed CD-ROM of Keenan’s second trial (hereinafter, “Keenan II CD”) and informed defense counsel that the State intended to present the same evidence at D’Ambrosio’s retrial that it used to convict Keenan. Not satisfied that the State had provided all discovery to which D’Ambrosio was entitled, D’Ambrosio’s counsel complained to the state court regarding the inadequacy of the State’s compliance with its discovery obligations under Rule 16 of the Ohio Rules of Criminal Procedure. The trial court ordered the State to supply the defense with all pertinent discovery by no later than February 13, 2009. (ECF No. 214-2, at 17.) After furnishing the defense with certain additional discovery, including a never-before disclosed tissue sample taken from Klann and a lab report discussing the testing of soil samples taken from Doan Creek, the State filed a notice on February 20, 2009, indicating that defense counsel had “actual possession or actual knowledge” of all discoverable materials relating to the matter. (ECF No. 222-6.) On that same day, the State also represented to the trial court that “[the defense] has everything and they’ve had everything from day one.” (ECF No. 218-2, at 12.) 1. The State’s Discovery of Additional Evidence Late in the day on February 20, 2009, Matthew Meyer, an Assistant Cuyahoga County Prosecutor assigned to D’Ambrosio’s retrial, contacted defense counsel and disclosed that some evidence gathered in the course of Klann’s murder investigation remained in the Cleveland Police Department’s possession and had not been produced previously to D’Ambrosio’s counsel. On February 23, 2009 the parties appeared before Judge Synenberg to discuss these new discovery materials. Meyer informed the court that, on February 20, 2009, he discovered that four envelopes containing two soil samples, one latent boot print, and blood samples taken from D’Ambrosio’s apartment during the course of the murder investigation were still in the Special Investigation Unit (hereinafter, “SIU”) lab. (ECF No. 214-3, at 7.) He assured the trial court that he had immediately alerted defense counsel upon learning of the existence of these materials. (Id.) At the close of the February 23, 2009, proceedings, Judge Synenberg informed the parties that she would address the implications of this newly discovered evidence at a hearing already scheduled for the following day, February 24, 2009, and specifically would address a defense motion to continue the trial as a sanction for the State’s delayed discovery. 2. The Defense Motion for Sanctions On the morning of February 24, 2009, D’Ambrosio filed a written motion for sanctions for failure to comply with Ohio Rule of Criminal Procedure 16. In that motion, D’Ambrosio asked the trial court to sanction the State by either: (1) dismissing the case in its entirety; (2) dismissing the capital aspects of the case; or (3) continuing the trial date to allow the defense sufficient time to test and assess the newly discovered evidence. i. The February 24th Hearing The state court and the parties convened to consider, among other matters, the defense motion for sanctions. Counsel for D’Ambrosio, Jeffry Kelleher, argued that the discovery of this evidence and production of the other new evidence in mid-February 2009 had collectively “changed the landscape of [the] case as far as the defense [was] concerned.” (ECF No. 215-2, at 16.) He claimed, for instance, that, while D’Ambrosio’s prior counsel had been aware that police had recovered blood evidence from D’Ambrosio’s apartment based on his own trial testimony, “the substance itself’ had neither been subjected to DNA analysis, nor matched to any individuals. (Id. at 23.) Kelleher emphasized that, while the County Coroner had testified at some point during trial that there were no blood samples taken from Klann that were suitable for testing, the defense “learned subsequently in the last week and a half that there are histological samples, meaning tissue and/or swabs of ... blood or other bodily fluids, taken from Klann that may well be suitable for DNA testing.” (Id.) The State thereafter recounted what had occurred on February 20, 2009. Mark Mahoney, the lead prosecutor, explained: What the state learned was that the actual items existed and the envelopes were shown to us. We immediately, upon learning that information, within an hour, contacted Mr. Tobik and asked him Friday at, I believe, 3:30, to come over to our office. I want the court to be aware that once the state was aware of the existence of those envelopes, we had immediately contacted the defense. I know that this case has a history. It has a history with finding prosecutor misconduct, Brady violations, and the like. Those occurred in 1988 and 1989. Today when the state became aware of this, we immediately notified the defense, because these attorneys are aware of our obligations. (Id. at 34.) Meyer also disclosed that the state was unaware of the envelopes “because copies of the envelopes were not in the State’s file for our inspection.” (ECF No. 215-2, at 37-39.) He indicated that he had only learned of this evidence himself when he called the SIU lab on February 20, 2009, which he had done to verify that the State had disclosed all evidence pertaining to the Klann murder investigation. Meyer explained that the State had relied on averments of the Cleveland Law Department (made in 2002 in response to this Court’s discovery order) when it mistakenly assured the trial court that all evidence had been turned over to D’Ambrosio. (Id. at 60.) While the State contended that D’Ambrosio’s counsel also had been remiss in not asking about the physical evidence, since the record of the earlier Klann-related trials contained evidence that most of these items had been gathered during the initial investigation, it did not deny that D’Ambrosio’s desire to test this evidence was reasonable. The prosecution asked Judge Synenberg to deny D’Ambrosio’s motion to dismiss the indictment or the death-penalty specifications therein, and, instead, encouraged the Court to continue the trial so as to “get to the trial in a way that is constitutionally appropriate.” (ECF No. 215-2, at 55-6) (“Given the state of the evidence, I think it would be appropriate to continue to accomplish forensic testing.”). ii. The February 25th Ruling On February 25, 2009, the state court reconvened the proceedings and ruled on D’Ambrosio’s motion for sanctions. Judge Synenberg delivered a ruling from the bench in which she accepted the State’s proposal that she impose the least restrictive sanction available and continue the trial to allow for forensic testing of the newly located evidence in the four SIU envelopes. She held: “This Court will not proceed with another unconstitutional trial. The parties do not dispute that due process requires a testing of the evidence. Justice requires a continuance.” (ECF No. 239, February 25, 2009 transcript, at 5.) 3. The State’s Post-February 25, 2009 Conduct The trial court held another pre-trial hearing on March 2, 2009. At that point, the State attempted to file a written brief in response to the same motion for sanctions the Court had heard and ruled upon the previous week. The trial court did not accept this belated filing, indicating that no previous request had been made to submit it and that the matter was fully resolved. (ECF No. 214-4, at 38.) The court then turned to the question of how long the previously granted delay in the trial should be. Despite its earlier indications that a continuance was both reasonable and necessary to assure a “constitutionally appropriate” trial, the State now claimed it wished to go forward with the trial prior to this Court’s March 10, 2009, deadline. The State maintained that it did not wish to test any of the physical evidence prior to trial, and that the defendant’s request to do so was unreasonable in light of the limited relevance of the evidence. The State argued that the court should proceed with the trial without further delay. The defense vigorously objected to the State’s posture, arguing the new evidence was indeed relevant, and pointing out other remaining concerns regarding discovery that still needed to be addressed. Judge Synenberg declined the State’s request to reconsider her earlier ruling and continued D’Ambrosio’s trial until May 4, 2009. (ECF No. 211-3.) The State then asked Judge Synenberg to recuse herself, asserting that she could not be impartial. (Id. at 45.) The State claimed it had evidence that she had represented Keenan in connection with Klann’s murder while in private practice in 1993. This assertion surprised the Judge, who said the State’s claim was inaccurate. Judge Synenberg invited the State to file a motion seeking her recusal if it had information it believed would merit such a request. D. Return to Federal Court After the trial court reset the trial for May 4, 2009, the State and Warden filed the Joint Motion for Extension now pending before the Court. As noted above, the State and the Warden ask the Court to expand the time within which it may retry D’Ambrosio until some point after the now-scheduled state trial date. On March 6, 2009, the Court held a conference and issued a preliminary order extending the deadline in its mandate. It also barred retrial to give the parties an opportunity to brief the issue and to allow the Court to conduct an evidentiary hearing and issue this ruling. (ECF No. 217.) D’Ambrosio filed a brief in opposition to the motion, to which both the State and the Warden filed replies. (ECF Nos. 222; 223; 224.) Also filed with the Court were hearing transcripts, orders, and journal entries from the state court proceedings. Finally, the State filed a document it characterized as “supplemental authority,” which was a copy of an Affidavit of Disqualification filed with the Ohio Supreme Court in which the State seeks to disqualify Judge Synenberg from presiding over additional proceedings in this matter. (ECF No. 225.) After considering the briefs, the Court conducted the hearing on April 1 and 2, 2009. 1. Mahoney Testimony The State first called Assistant Cuyahoga County Prosecutor Mahoney to testify. His testimony focused on the degree to which he believed the defense should have known about, or could have procured, the SIU envelopes and their contents. Mahoney stated that information regarding the contents of the four envelopes had been provided to D’Ambrosio through the Keenan II CD. (ECF No. 237, at 11.) He explained that he previously had informed defense counsel that the State would use the witnesses and exhibits from the Keenan II trial to reprosecute D’Ambrosio. Mahoney also observed that the police reports noting the collection of soil and blood samples had been turned over to the defense by no later than the habeas proceedings in this Court. Moreover, he maintained, the defense must have known about the blood sample collections, because D’Ambrosio testified about them during Keenan’s trial, where he had explained that he had cut himself and that the blood was his own. (Id. at 17.) Mahoney argued that, though the defense was aware of the blood evidence, it failed to request a review of it. Mahoney’s testimony about his own knowledge of the envelopes was contradictory. He first testified that he personally knew of the existence of the envelopes prior to February 20, 2009. This was surprising, because he had asserted the opposite before the state trial court. When this Court queried Mahoney about this striking inconsistency,- and read portions of his testimony from the February 24, 2009, hearing to him, Mahoney equivocated, stating either that he “misspoke” when he expressed his surprise at discovering the envelopes to Judge Synenberg, or that, because he was preoccupied with trying another capital case at the time, he was confused. (ECF No. 237, at 52.) Ma-honey, confusingly, even avoided answering directly whether he was aware that the envelopes themselves had been provided previously to the defense. After several attempts by defense counsel and the Court itself to elicit a direct response, Mahoney finally conceded that he “wasn’t aware that these photocopies, the envelopes themselves, had been photocopied and provided to the defense,” but again asserted that the defense should have realized that any physical evidence in this case could be procured from the appropriate Cleveland Police Department homicide unit. (ECF No. 237, at 54.) Mahoney then discussed at length his understanding of the State’s discovery obligations, in large measure repudiating the expansive view of those obligations espoused to the state court by he and Meyer on February 23 and 24, 2009. Specifically, Mahoney explained his belief that the State had no obligation to search for or produce physical, tangible items of evidence unless and until defense counsel orally requested the production of specific items, or sought review of items housed at specific locations. Mahoney asserted that, because references to the collection of blood and soil samples could be found upon review of the original police reports, which, in turn, were referenced in the Keenan II trial and were locatable through a search of the Keenan II CD, defense counsel was obligated to identify and ask to see those items of evidence before the State was obligated to search for them. When pressed on whether it was his view that D’Ambrosio’s two written requests for the production of all tangible items in the State’s possession were insufficient to trigger the State’s obligations to produce the blood and soil samples, Mahoney said yes. At the hearing, Mahoney’s evasiveness regarding the State’s discovery obligations was palpable, and somewhat frustrating. Although it is difficult to convey on the printed page, the following lengthy excerpt from his testimony gives an impression of his reluctance to answer the simple question of whether he believed defense counsel failed to ask for the evidence in the SIU lab. [BY MR. LEWIS:] In this case you said to Mr. Tobik, you know what, I’m going to get a conference room at the SIU Department, and I’m going to lay out all the physical evidence the state has in its possession, and you know, here it is, here it is, because I know that you filed this written discovery request in 2008, November 2008, so here it all is, here it is on the table. You did that. You’re saying that you did that in this case? A. If Mr. Tobik, Mr. Kelleher, and although he’s not an attorney of record, Mr. Lewis, if they had made that request that would have been accomplished. Q. You agree with me that it wasn’t accomplished in this case? Mr. Dowling: Objection. A. I agree. THE COURT: Overruled. Q. Okay. So your view is that the request was never made; is that right? A. Outside of the veiled general reference for Mr. Tobik that was never followed up upon, I received no verbal or written request from the defense to review every piece of physical evidence. Q. And you didn’t view this November 2008 filing, which is a written document filed with the state court requesting tangible objects, you didn’t view that as request from Mr. D’Ambrosio’s counsel to view tangible objects? MR. DOWLING: Objection. THE COURT: Overruled. THE WITNESS: May I see that document, Your Honor? THE COURT: Sure. It’s the one that was on the screen before. THE WITNESS: It’s no longer on the screen. MR. LEWIS: May I approach the witness, Your Honor? THE COURT: Yes. Why don’t you let him have a copy of it. THE WITNESS: Thank you, Mr. Lewis. What again was your question? BY MR. LEWIS: Q. My question is, did you view this November 2008 written discovery request filed in the state court as a request to see tangible objects in the possession of the state in this case? Did you view it that way or not? A. I reviewed this as all filings, I reviewed it. I know it to be a standard discovery request that ask for books, papers, documents, photographs, tangible objects, buildings, or places, or copies of portions thereof which are material for preparation of the defense or intended for use by the prosecuting attorney as evidence at trial. Q. In response to this November 2008 written discovery request, Mr. Mahoney, very simple question, did you view it as a request to see the physical evidence that was in the possession of the state in 2008? A. No. Q. You did not view it that way? A. No. (Recess had.) BY MR. LEWIS: Q. Where we left off, Mr. Mahoney, was you didn’t view the November 2008 discovery request filed by D’Ambrosio as a request for the state to come forward and produce the physical evidence it had in its possession; isn’t that right? A. I viewed this request under Criminal Rule 16 as my obligation to make available for photocopy or inspection all items that the state intended to use at trial or that may be material to the defense. THE COURT: So that would include physical evidence, right? THE WITNESS: Yes. THE COURT: Okay. BY MR. LEWIS: Q. Okay. So that’s a little different than what you told me before. MR. DOWLING: Objection. Q. So I want to ask a follow-up question. THE COURT: Well, the transcript will be what it is. Okay. BY MR. LEWIS: Q. So you viewed the November 2008 discovery request filed by D’Ambrosio as requiring the state to come forward and either produce, or put out on a table, or make available physical evidence in the state’s possession? A. If requested to by the defense attorneys, as I indicated, yes. If Mr. Tobik, Mr. Kelleher, or you, Mr. Lewis, had come to me and said look, we would like you to pull all the items from the Cleveland Police Department and have them made available in the conference room, or I’ve done it in a jury room, but again I would not take physical possession of an item of evidence and disturb a chain of custody or potentially disturb a chain of custody, I would make them available either in my office through the detective, in the jury room, or in the example I provided earlier, at a local law enforcement agency. Q. Okay. Let’s just assume for a minute in your mind that the request that you were waiting for had been made. Okay. You were waiting for something. And had something occurred, some request been made in your mind, you would have taken some action; is that right? That action included let’s setup a meeting in the conference room and we’ll put it all on the table. A. If Mr. Tobik or anyone else had made an oral request, or otherwise, I would have taken the steps necessary to accomplish! ] that, yes, absolutely. Q. And the steps that you would have taken are that you would have arranged for a meeting at the location of where the physical evidence was so that defense counsel can come over and look at the table and see the physical evidence that the state had in its possession. That’s one way you would do it, isn’t it? A. That is one of a couple of ways that I would achieve that. Q. Okay. And it’s your testimony that the written request filed by the state court in November of 2008 was insufficient to you to start taking the steps necessary to effectuate what you just told us you would do? Do you understand what I’m asking, sir? A. No, I don’t. Q. Okay. A. Honestly. Q. You laid out a number of steps that you would take if in your mind a proper request had been made of you to produce physical evidence; is that right? A. It was. And I did produce the evidence by way of the CD. I mean the CD had all of the— Q. I’m not talking about the CD, Mr. Mahoney. We only have a limited amount of time here. So let’s focus on what I’m asking you, sir. MR. DOWLING: Objection. Q. I’m talking about physical— THE COURT: I understand the debate with respect to the CD. Let’s just talk about the physical evidence. And whether that’s meaningful or not, [is] up to me to decide. THE WITNESS: Understood. THE COURT: Okay. BY MR. LEWIS: Q. I’m talking about physical evidence. You laid out for me the steps that you would take, sir, if you, in your mind, had a proper request from defense counsel to produce physical evidence, right? I mean we talked about that right? A. Um-hum. Yes. Q. And my question to you is, you did not view this written discovery request filed in the state court as sufficient [for] you to start to take the steps that you’ve outlined you would take if a proper request had been made; isn’t that right? A. I would indicate, Mr. Lewis, that typically, and routinely defense attorneys would ask me specifically, I would like to see all of the evidence, or I would like to see portions of it. If it was voluminous, such as the Parma case, then I would contact the law enforcement agency and we would go to them. If it was something that could be carried, or hand carried, or in a box, or so, it would be brought over either to my office or to the jury room in a particular case. That’s how it is done. That is how I have done it for 16 years. And again, to be real clear, had the gentlemen for the defense made any request whatsoever to see any specific item of physical evidence, whether it was available within the Cleveland Police Department or like the drugs that were destroyed, I would have taken all of the necessary steps to make sure that that was done. I believed that I had covered my duty and responsibility because I had given them, as I indicated, the blueprint for the entire case by way of the CD, and then the oral discovery that had been exchanged between the parties. THE COURT: So I guess — I’m just trying to get an answer to the question. So you’re saying that that written request wasn’t enough, you had to have an oral follow-up to that request to trigger your obligation? THE WITNESS: Typically, Your Hon- or, the defense attorney asks. By way of example, if this were a narcotics case— THE COURT: Okay. I understand. But really he asked you a question. And if the answer is no, I didn’t think that was enough, that’s fine. But you still haven’t answered the question. So he gives you a written request for discovery, and you — what you’re saying is that, no, you didn’t think that was enough to trigger it, you needed something more? THE WITNESS: My answer, to nail it down then, would be, yes, Your Honor. I was waiting for the defense to say to me when can we go see this stuff, how can we best accomplish it, will it be in your office, will it be in the jury room, or do we have to get you to come with us to the Cleveland SIU lab. I mean it was done in this case on February 27 when Mr. Tobik made a request to go over and see the items, that was accomplished within a matter of days. I was not present because I was in Judge Stuart Friedman’s room in trial. When Mr. Tobik made that request it was accomplished— THE COURT: Okay. (ECF No. 237 at 73-81.) 2. Meyer Testimony The State next called Assistant County Prosecutor Meyer to testify. He indicated that his responsibilities in D’Ambrosio’s retrial consisted primarily of drafting legal memoranda and conducting legal research. Despite this limited role, Meyer explained that, prior to February 20, 2009, he did have general discussions with Tobik about discovery. He recalled that he had admonished Tobik to be specific regarding items he wished to inspect. (Id. at 116.) Meyer testified that, although the defense requested an inventory of all discoverable materials the State had in its possession, he did not feel furnishing such an inventory to the defense was required under Ohio Criminal Rule of Procedure 16. He explained that the Rule merely required him to make the material available to the defense and that providing police reports that referred to items of evidence constitutes sufficient disclosure. Meyer then explained that, after he learned about the four envelopes in the SIU lab, he contacted Mahoney and explained that the “actual copies of the envelopes” may not have been produced to the defense. (Id. at 123.) Meyer testified that he believed it was the information on the outside of the envelopes, which, in one case, described the location on the Doan Creek bed where the soil samples were taken, that needed to be produced to the defense. He stated that he believed there was a clear distinction between the outside of the envelopes and the contents found therein and that he thought he made this distinction clear to the trial court in chambers on February 24, 2009. He also testified that he attempted to assert this distinction on the record that day but either was not clear or must have been cutoff. According to Meyer, the distinction is important because, while the material in the envelopes may not have been subjected to forensic testing as of late February 2009, the envelopes themselves needed no such analysis. Hence, according to Meyer, if the State had adequately disclosed the existence of the contents of the envelopes (ie., the soil samples, boot print, and blood swabs), the only late-disclosed discovery was the envelopes themselves. Meyer asserted that there was nothing about the disclosure of the envelopes that justified the sanction granted by Judge Synenberg, so that the failure to comply with this Court’s mandate should be charged to the defense, or to the errant trial court judge, not to the State. Like Mahoney, Meyer took the position before this Court that the defense had an obligation to ask specifically for the production of the blood and soil samples before the State had an obligation to look for or produce them. Once again, it is worth noting that, like Mahoney, Meyer was less than precise in responding to certain questions from defense counsel and the Court. For example, when asked whether he was truthful in his representations to the state court, Meyer responded “[a]s much as I could be under those difficult circumstances.” (Doc. 237 at 143:3-4.) A longer colloquy between the Court and Meyer, in which the Court questions Meyer regarding his above response, illustrates his tendency to evade when discussing his interactions with the state court: THE COURT: Now, you said that on the 20th when you discovered this information you immediately contacted your supervisors. And then apparently after discussions with them you then made the conclusion that you had to immediately disclose it to the defendants, right? THE WITNESS: Yes. I mean that was— THE COURT: So is it fair for me to assume that you felt that it was important, and that it was important to turn it over? THE WITNESS: Well, yes. I mean, and again, primarily the facts described on the envelope were what we thought was important. THE COURT: Okay. And in fact you later said that to Judge Synenberg that it was important to turn it over immediately, right? THE WITNESS: Yes. THE COURT: So then three days later on Monday, the 23rd you appear before Judge Synenberg and you actually discuss the envelopes and discuss the issue and your decision that they- — -that it should be disclosed immediately, right? THE WITNESS: That’s right. THE COURT: And at the end of that hearing she says “Tomorrow we’re going to discuss counsel’s desire to have sanctions relating to this late disclosure.” She says that at the end of the hearing on the 23rd, doesn’t she? THE WITNESS: It is in the transcript, yes. THE COURT: You think the transcript — the court reporter made it up? THE WITNESS: I don’t recall personally her making that comment. I know that I exited the proceedings fairly quickly. And the proceeding discussion we had in chambers really was— THE COURT: Wait. Wait. Wait. I’m sorry. But it says — you actually respond after she says that. THE WITNESS: Did I? THE COURT: Yes. I mean so you couldn’t have been out of the room. She says, “okay. We’ll address this issue with respect to bail and we’ll continue tomorrow” ... And then she says, ... “Well, counsel requested going on the record tomorrow to have a hearing on the motion to continue trial based on this evidence that has not yet been tested and that was recently discovered by Mr. Meyer.” And then she turns to you and says, “Mr. Meyer, thank you for your diligence in honoring your ongoing duty to the defense. I’ll see everybody tomorrow at 11:00.” So you’re saying you weren’t in the room when she was talking to you? THE WITNESS: You know, I was fairly distracted when she said that. I don’t recall her saying those precise words personally. I can tell you though that I do recall the context of the discussion she had in chambers with me immediately before that took place. And the context of that discussion was the defense counsel wanted DNA testing. They were very concerned that DNA testing would go beyond the date of the Court’s mandate. And I mean I honestly don’t recall the discussion about sanctions. The record speaks for itself. So if I’m guilty of not paying attention on that particular point, then I am. THE COURT: So then the next day, the 24th, you get there and you agree that there is no place on the record at all where there is ever a request to file a written response to the defendant’s motion. THE WITNESS: I’m sorry? THE COURT: That there is no — you said you asked to file a written response, but it doesn’t appear on the record anywhere, does it? THE WITNESS: No, I didn’t state that on the record. THE COURT: All right. And then on your point of strategy, it may have been a strategy to not ask for any additional time, but in fact Mr. Lewis is correct, not only did you not ask for more time you actually said, “let’s not take a break at all. Let’s work right through lunch and get to this.” THE WITNESS: I think Mr. Mahoney said that, mainly because he wanted to get to his capital trial. The discussion that Mark and I had mainly was that we thought she was going to dismiss this murder case and we thought it best not to put on the record what we had said outside, because outside the Judge gave us a very negative response. And it’s just a matter of not wanting to, I guess. THE COURT: I mean you have been a lawyer for a long time. You understand the importance of a record, don’t you? THE WITNESS: Yes, I do. THE COURT: I’m just trying to establish you never said on the record that you wanted any continuance and in fact asked for no break, right? THE WITNESS: That is what got said, yes. THE COURT: All right. And then this concerned me, because when Mr. Lewis asked if you were honest with the state court judge you said “as honest as I could be.” What in this record is a falsity? I mean what did you say to the state court judge that was untrue? THE WITNESS: I was mainly concerned with what I hadn’t been able to evaluate in, particularly in, Mr. D’Ambrosio’s summary judgment materials. So when I stood up and answered those questions that the Judge and defense counsel were putting to me, it was mainly because I had only had the chance to read the transcript in some detail on the issues that they were raising. I had not had a chance to carefully evaluate the federal habeas corpus material. So I just didn’t feel that my knowledge at the point I was answering those questions was complete. THE COURT: That’s fine. But you read this since then, right? THE WITNESS: Yes. THE COURT: We have a whole proceeding, we’ve got all of these exhibits. So what did you say that wasn’t true? THE WITNESS: I can’t recall one specific instance of me saying something that was not true. I do point out though— THE COURT: You said you can’t recall, or can not— THE WITNESS: I don’t know of anything I said that wasn’t specifically true. If I had had a chance to carefully evaluate and research the material before doing that hearing I probably would have had these police reports and SIU lab cards at my disposal to demonstrate to Judge Synenberg and defense counsel that we were litigating a point that was really already known. THE COURT: But it wouldn’t change the fact that the envelopes weren’t already known, right? THE WITNESS: Right. And I stand by the statements I made there. THE COURT: Okay.... (ECF No. 237, at 149-54.) 3. The Petitioner’s Witnesses Upon conclusion of the State’s testimony, the defense called D’Ambrosio’s former habeas counsel, John Joseph Bodine, Jr., to testify. Bodine stated that, during the time he represented D’Ambrosio, he received no notice that any physical evidence from the Klann murder investigation remained in existence at the Cleveland Police Department and that no physical evidence other than certain knives seized after the murder had been produced in response to this Court’s discovery order. (ECF No. 237, at 176.) The defense also called Tobik to testify. Tobik stated that he did not know that the four envelopes existed, or that their contents had been preserved, until Meyer contacted him on February 20, 2009. Consequently, he explained, he made no request to view those specific items prior to that date. He noted that there was no reference to the SIU envelopes in the Keenan II CD and there was no place in the Keenan II CD where the report indicating that soil samples taken from the Doan Creek area had tested negative for blood could be located. At the conclusion of Tobik’s testimony, the Court adjourned for the day. 4. Keenan II CD Although the State heavily relies upon the Keenan II CD, it is clear that: (1) there is no reference on that CD to the four SIU envelopes; (2) none of the physical evidence originally stored in those envelopes was introduced at the Keenan II trial; (3) there is no testimony indicating that either the envelopes or the physical evidence in them remained in existence as of 1993, when Keenan was tried for the second time; (4) there is no reference to the tissue samples taken from Klann that were produced to D’Ambrosio’s counsel for the first time on February 2009; and (5) the lab report, again produced for the first time in February 2009 that revealed that the Doan Creek soil samples had tested negative for traces of blood, was not offered into evidence in the Keenan II trial. It is also apparent, however, that certain facts can be gleaned from the Keenan II CD. Particularly, there is clear reference in both the police reports and testimony to the fact that both blood and soil samples had been collected during the initial investigation in 1988. There is, moreover, a testimonial reference to testing the Doan Creek soil samples, though not to the lab report itself. 5. Legal Argument The hearing resumed on April 2, 2009, for argument on all issues raised by the parties’ respective filings and the evidentiary submissions. The parties acknowledged that there are two critical issues posed by the Joint Motion to Extend and opposition thereto: (1) whether the State has satisfied its burden of convincing the Court that the deadline on this Court’s conditional writ should be extended further; and (2) whether, if it has not, the Court should not only deny the extension, but bar reprosecution of D’Ambrosio. The Warden addressed both points. First, the Warden argued that the Court may only deny a request to extend a conditional writ where the State wholly fails to act in response to the Court’s order. The Warden argued that, because the State and D’Ambrosio’s counsel had been “fighting like tigers” in preparation for D’Ambrosio’s retrial, and the trial judge had conducted multiple pre-trials, this Court should acknowledge that activity and give the parties time to finish the process. On the question of barring reprosecution, the Warden argued both that D’Ambrosio had waived his right to seek such an order because he did not ask for one in his original petition and that this Court had no jurisdiction to enter an order barring re-prosecution in these circumstances. The State focused only on whether it had made a sufficient showing to justify an extension of the Court’s mandate — ie., whether it had established that it had made adequate good faith efforts to comply with that mandate and that its conduct merited additional time within which to do so. The State left to the Warden the task of arguing the niceties of federal habeas corpus law. The gist of the State’s argument was that it had complied with all of its prosecutorial obligations, and that D’Ambrosio’s counsel should have asked to see the physical evidence at SIU, or to review any other tangible items they wanted. As a result, according to the State, the state court’s sanctions order was unwarranted, and it is the defense who should be charged with any failure to satisfy this Court’s deadline. D’Ambrosio’s counsel, not surprisingly, disagreed with both the Warden and the State. He argued that this is precisely the kind of case in which it is appropriate for the federal district court not only to deny any request for an extension, but to bar reprosecution. Citing the Sixth Circuit’s opinion in Satterlee v. Wolfenbarger, 453 F.3d 362 (6th Cir.2006), for the applicable standard, and analogizing this case to Morales v. Portuondo, 165 F.Supp.2d 601 (S.D.N.Y.2001), D’Ambrosio’s counsel argued that the State’s misconduct, coupled with its prejudicial effect, constitute the “extraordinary circumstances” under which the Court may, and should, bar re-prosecution. Counsel argued that the State’s steadfast belief that it did nothing wrong vis-a-vis its obligations to D’Ambrosio, to the state court, and to this Court, combined with the State’s willingness to re-characterize its action depending on the judicial forum it is in (ie., for “strategic” reasons) means that “we can have no faith that, unless this Court bars reprosecution, that there will be a constitutional trial.” (ECF No. 238, at 83.) Finally, D’Ambrosio’s counsel emphasized that the trial court’s decision to sanction the State was distinct from a defense request for a continuance and was chargeable to the State, and only the State. After taking the matter under advisement, the Court adjourned the hearing. II. Analysis A. Collateral Estoppel Does Not Apply Prior to addressing whether to enlarge the time for the State to retry D’Ambrosio, the Court must address the collateral estoppel argument he raises. D’Ambrosio asserts that this Court may not examine the propriety of the State’s conduct when rendering its decision, because the state court already determined that the prosecution’s misconduct was responsible for the breach of the 180-day mandate. D’Ambrosio argues that the Court is bound by this determination and may not re-litigate it in these proceedings. To be correct, D’Ambrosio would need to show that: (1) the question of whether the State’s conduct caused the continuance was raised and actually litigated before the state trial court; (2) a determination of that question was necessary to the outcome of a proceeding before the state trial court; (3) the proceeding in state court resulted in a final judgment on the merits; and (4) the State had a full and fair opportunity to litigate the propriety of its conduct. Bies v. Bagley, 535 F.3d 520, 524 (6th Cir.2008); Thomas v. Thistledown, Inc., No. 1:05— CV-02138, 2009 WL 455305, at *5 (N.D.Ohio Feb.20, 2009). The Court declines D’Ambrosio’s invitation to truncate these proceedings or this Court’s findings for two independently sufficient reasons: (1) the state court’s sanctions order was not a “final judgment on the merits”; and (2) even if it were, the questions answered by the state court would not alter any conclusions reached in this Order. In Ohio, for an order to constitute a final judgment on the merits for purposes of collateral estoppel, it must be an immediately appealable order. Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 861 N.E.2d 109, 118 (2006) (“Essentially, collateral estoppel prevents parties from relitigating facts and issues that were fully litigated in a previous case. The question here is whether the previous facts and issues were ‘fully litigated,’ given that the case terminated with a dismissal by the plaintiffs. The issues must have been determined by a final appealable order.”); Anderson v. Eyman, 180 Ohio App.3d 794, 907 N.E.2d 730, 736 (2009) (“[I]n order for [collateral estoppel] to apply the issues must have been determined by a final appealable order.”). The state court order at issue was a discovery sanction ordering a continuance, which is not yet appealable because the state litigation is still pending. See State ex rel. Kmart Corp. v. Frantom, 86 Ohio St.3d 430, 715 N.E.2d 545, 546 (1999) (“A discovery order [can] not be reviewed in mandamus because the writ cannot be used to create an appeal from an order that is not final.”); Maxim Fin. v. Dzina, No. 65206, 1993 WL 497036, at *7, 1993 Ohio App. LEXIS 5748, at *21 (Ohio Ct.App. Dec. 2, 1993) (contrasting a discovery sanction generally from a sanction that results in dismissal); accord United States v. Elkins, No. 96-20152, 2003 WL 1906168, at *4, 2003 U.S. Dist. LEXIS 6441, at *10 (W.D.Tenn. Apr. 17, 2003) (“[A]n order for discovery sanctions is not a final order for purposes of appeal.” (quotation omitted)) (federal law); State v. Cecil, 533 So.2d 884, 885 (Fla.Dist.Ct.App.1988) (finding that a discovery sanction excluding a crime victim’s testimony was not a final order) (Florida law); cf. Banks v. Ohio Physical Med. & Rehab., Inc., 2008 Ohio 2165, ¶ 16, 2008 WL 1970832 (Ohio Ct.App.2008) (noting that certain discovery issues are now immediately appealable). Because the state court order is not one that could be immediately appealed, collateral estoppel cannot apply. Pac. Emplrs. Ins. Co. v. Sav-A-Lot, 291 F.3d 392, 399 (6th Cir.2002) (“Here, there was not final judgment on the merits. The doctrines of res judicata and collateral estoppel thus have no potential application in this case.”). Even if collateral estoppel did apply, it would not operate in the manner D’Ambrosio urges. Collateral estoppel bars only the reconsideration of issues actually determined by another tribunal. Thomas, 2009 WL 455305, at *5. Although some of the factual issues might be the same and, consequently, barred from reconsideration, the legal issues are quite different: the standard applied by a federal habeas court in determining whether to issue an unconditional writ or to bar re-prosecution is not the same as the standard applied by an Ohio trial court in determining whether to issue a discovery sanction. If collateral estoppel did apply, it would compel this Court to determine that the State, rather than D’Ambrosio, was responsible for the delay, but it would not compel any particular legal conclusion flowing from that determination. See id. This Court, as explained more fully below, reaches the same conclusion as the state court regarding the delay, but does so independently of the state court determination. Id. B. Issuance of Unconditional Writ The purpose of a habeas court’s issuance of a conditional writ is to afford the state an opportunity to remedy its error. As the United States Supreme Court opined, “Conditional writs enable habeas courts to give States time to replace an invalid judgement with a valid one.” Wilkinson v. Dotson, 544 U.S. 74, 87, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); see also McKitrick v. Jeffreys, 255 Fed.Appx. 74, 75-6 (6th Cir.2007) (“District courts rightly favor conditional grants of the writ, which, in addition to providing the state an opportunity to cure its constitutional errors, maintain comity among coequal sovereigns.”). When a district court issues a conditional writ, an unconditional writ “lies latent unless and until the state fails to perform the established condition, at which time the [unconditional writ] springs to life.” Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.2006) (citations omitted). A habeas court retains jurisdiction to determine whether the state has complied with the conditions set forth in the conditional writ. Gentry, 456 F.3d at 692. Once the district court has determined that the state has not satisfied the conditions in the writ, it is appropriate for the court to order the immediate release of the petitioner. Satterlee v. Wolfenbarger, 453 F.3d 362, 369 (6th Cir.2006); Fisher v. Rose, 757 F.2d 789, 791 (6th Cir.1985). 1. Extension of the Conditional Writ Notwithstanding the seemingly absolute language of a conditional writ, a district court retains the equitable power to extend the writ in the face of non-compliance. Harvest v. Castro, 531 F.3d 737, 742 (9th Cir.2008) (“Despite the absolute language employed by some jurists and commentators, several of our sister circuits have nevertheless held that a district court can modify its conditional order even after the expiration of the time period set in the order, thus allowing the State to retain the petitioner in its custody even when the State failed to act within the prescribed time period.”); see also McKitrick, 255 Fed.Appx. at 76 (“Despite the seemingly rigid language on which Petitioner relies for his request, Satterlee does not require immediate release in all cases where a term of the conditional writ was not performed precisely as ordered.”); but see Wilkinson, 544 U.S. at 87, 125 S.Ct. 1242 (Scalia, J., concurring) (“[T]he consequence [for failure to comply with a conditional writ] is always release.”). The Sixth Circuit, in accord with its sister circuits, has concluded that full compliance with a conditional writ is not always required. In McKitrick, the Sixth Circuit held that a district court “must make a finding concerning the sufficiency of the actions the state has taken pursuant to the district court’s mandate, and it also must evaluate the prejudice to the petitioner by any non-compliance. Substantial compliance with the terms of the order may be sufficient.” 255 Fed.Appx. at 76 (citations omitted). The habeas petitioner in McKitrick moved the district court for his immediate release when the state failed to resentence him within the 90 days prescribed in the conditional writ order. Id. at 75. Because the state had resentenced the petitioner on the 91st day, however, the district court held that the state’s substantial compliance with the conditional writ was sufficient to deny the petitioner’s motion. Id. at 76. Finding that district courts enjoy broad discretion to determine whether an extension of the conditional writ is justified, the Sixth Circuit concluded that the district court did not abuse its discretion in finding in favor of the state. Id. at 77-8. Other district courts in this Circuit have relied on McKitrick to extend conditional writs where the State has substantially complied with its terms. In Foster v. Money, No. 05-CV-1009, 2008 WL 4148594 (N.D.Ohio Sept. 4, 2008), for example, another judge on this Court held that the state had substantially complied with the conditional writ that required the state to commence retrial within 120 days or tender a new plea offer to the petitioner. Id. at *1. The court held that, because the delay was occasioned by the petitioner’s requests for new counsel and two defense requests for a trial continuance, the state had substantially complied with the court’s 120-day mandate. Id. at *2. Even more recently, in Brovm v. Curtis, No. 07-CV-14038, 2009 WL 236692 (E.D.Mich. Feb.2, 2009), a district court held that the state substantially complied with its conditional writ requiring the state to make factual determinations regarding the petitioner’s speedy trial claim. In Broum, the state court conducted a hearing that involved the taking of testimony and appointment of counsel for petitioner during the hearing, although these actions were not required to satisfy the mandates of the writ. Id. at *2. Thus, McKitrick and its progeny offer some guidance to the Court, both as to the existence of its authority to extend its own conditional writ and of the types of factors the Court may consider in deciding whether to exercise its discretion to invoke that authority. Other circuits also have addressed the scope of this equitable power. In Gilmore v. Bertrand, 301 F.3d 581 (7th Cir.2002), the Seventh Circuit took an expansive view of it, holding, “[Ijogically, 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.” Id. at 582-83. It affirmed the district court’s decision to extend the time in the conditional writ despite the state’s failure to act, although it did not discuss its reasons for doing so in the opinion. The Third Circuit’s decision in Gibbs v. Frank, 500 F.3d 202 (3d Cir.2007), offers more guidance on the equitable considerations a court should assess when deciding whether to extend the mandates of a conditional writ. There, the district court issued a conditional writ requiring the state to retry the petitioner within 120 days. Id. at 204. The district court granted the state’s request for an extension of the retrial period when it found that: (1) the petitioner objected to the appointment of the public defender as his counsel; (2) the public defender’s father was a police officer who investigated the homicide of which the petitioner was convicted, causing his removal; (3) the petitioner’s counsel requested a continuance of the trial; and (4) the 120-day time period in the mandate was based on the Pennsylvania state law speedy trial rule, which excludes delays attributable to the defense. Id. at 209-10. In reaching this conclusion, Gibbs relied in part on Chambers v. Armontrout, 16 F.3d 257, 261 (8th Cir.1994), an Eighth Circuit decision also holding that evidence that the petitioner partially caused the delay in retrial is one equitable factor that can support a state’s request to extend the time in an existing mandate. Finally, in Harvest v. Castro, 531 F.3d 737 (9th Cir.2008), the Ninth Circuit reversed a district court’s decision to extend the mandate period in a conditional writ when the state failed to act because of the state attorney general’s “professionally inexcusable” inadvertence. Id. at 741. There, the assistant attorney general assigned to the case failed to provide the district court’s conditional writ order to the county prosecutor’s office until after the mandate period had expired. Reviewing the state’s request for an extension of t