I agree with Judge Tashima -- and think it's a significant point -- that we should treat a State's request for modification of a habeas grant as a Rule 60 motion, rather than as a free-floating equitable principle. I'm a little bit concerned that such requests don't neatly fit into the typical Rule 60 mode (witness, for example, the misfit between the "mistake" here and the typical Rule 60(b)(1) "mistake" that gives rise to the judgment itself), and think that there are some Rule 60 constraints that aren't mentioned by Judge Tashima that might give rise to problems in the habeas context (e.g., the one-year limitation on several Rule 60(b) categories), but think that he nonetheless generally articulates a proper approach. I may or may not tie the State as tightly to the literal terms of Rule 60 as Judge Tashima does -- and, to reiterate, I might -- but I think that Rule 60 is indeed the right construct for such relief. And totally agree both that the State's mistake here was inexcuable (which it forthrightly admits) and that it's not that great of a burden to say to a State, in esssence: "When the judiciary orders you to retry or release a prisoner within 60 days, and you don't, you can't just ignore the Order and continue to hold him; you've got to release him. Sure, you can generally rearrest him, and if you want to do that the second he steps foot out of prison, go ahead. But that doesn't mean you can just violate the Order." That seems entirely right to me. (P.S. - I obviously made up that quote, which isn't from Judge Tashima, but think his point is basically the same.)
So I think this is a very good development in habeas jurisprudence. As well as equitable in this individual case. It may not be perfect, and I'm a tiny bit queasy about parts. But, overall, I like it.
