1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0278p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

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ROGER DEAN GILLISPIE, 

Petitioner-Appellee, 

v. 

WARDEN, LONDON CORRECTIONAL INSTITUTION, 

Respondent-Appellant. 

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No. 13-3088 

Appeal from the United States District Court 

for the Southern District of Ohio at Dayton. 

No. 3:09-cv-00471—Michael R. Merz, Magistrate Judge. 

Argued: June 24, 2014 

Decided and Filed: November 13, 2014 

Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge.*

_________________ 

COUNSEL 

ARGUED: Stephanie L. Watson, OFFICE OF THE ATTORNEY GENERAL, Columbus, 

Ohio, for Appellant. Mark Godsey, OHIO INNOCENCE PROJECT, Cincinnati, Ohio, for 

Appellee. ON BRIEF: Stephanie L. Watson, OFFICE OF THE ATTORNEY GENERAL, 

Columbus, Ohio, for Appellant. Mark Godsey, OHIO INNOCENCE PROJECT, Cincinnati, 

Ohio, Pierre H. Bergeron, SQUIRE SANDERS LLP, Cincinnati, Ohio, for Appellee. 

 *

The Honorable Paul L. Maloney, Chief United States District Judge for the Western District of Michigan, 

sitting by designation. 

>
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 2 

_________________ 

OPINION

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KETHLEDGE, Circuit Judge. This case is before us a second time. In its first iteration, 

the State appealed a December 2011 order granting Roger Gillispie a conditional writ of habeas 

corpus. That appeal became moot, however, when in parallel proceedings the Ohio courts 

expressly vacated the criminal judgment that the State sought to preserve by means of its appeal. 

In connection with our dismissal of that appeal, the State failed to request that we vacate the 

conditional-writ order, though it likely could have obtained that relief if it had made the request. 

Instead, on remand, the State filed a motion to vacate the conditional-writ order pursuant to Rule 

60(b). The district court denied the motion, and the State now appeals the denial. We affirm, 

though not for the reasons stated by the district court. 

I. 

In August 1988, a man abducted a woman at gunpoint from a parking lot near Dayton, 

Ohio, took her to a remote area, and forced her to perform oral sex on him. Fifteen days later the 

same thing happened again, except on that occasion the man abducted two women. A grand jury 

indicted Gillispie for these crimes in October 1990. The following year, a jury convicted him of 

nine counts of rape and three counts of kidnapping, among other counts. The trial court 

sentenced Gillispie to 22 to 56 years in prison. The Ohio Court of Appeals affirmed Gillispie’s 

convictions and sentence. The Ohio Supreme Court denied leave to appeal. 

Over the next 15 years, Gillispie brought a variety of petitions and motions in state court. 

None secured his release. Then, in 2008, Gillispie moved for a new trial on three grounds, only 

two of which are relevant here. The first—premised on the Supreme Court’s decision in Brady 

v. Maryland, 373 U.S. 83 (1963)—was that the prosecution had failed to produce some initial 

police reports that allegedly eliminated Gillispie as a suspect. The state trial court rejected that 

claim, and the state court of appeals affirmed. The second ground for Gillispie’s motion was that 

new evidence showed that another man had committed the rapes. The state trial court rejected 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 3 

that claim as well, but the court of appeals remanded for an evidentiary hearing to evaluate 

Gillispie’s new evidence. 

At that point, as in a similar case, “proceedings in federal court began to interweave with 

those in state court.” Eddleman v. McKee, 586 F.3d 409, 411 (6th Cir. 2009). In December 

2009—before the state trial court commenced its evidentiary hearing—Gillispie filed a habeas 

petition in federal district court, asserting only his Brady claim. (That tactic was unusual 

because normally a prisoner exhausts all of his claims in state court before coming to federal 

court.) Meanwhile, in 2010, the state trial court held its evidentiary hearing and rejected 

Gillispie’s new-evidence claim. Gillispie appealed. 

Then, in 2011, the federal district court held an evidentiary hearing on Gillispie’s Brady 

claim. On December 15, 2011, the district court granted a so-called conditional writ of habeas 

corpus, which ordered Gillispie released “unless he is again convicted at a trial commencing not 

later than July 1, 2012.” The State filed a notice of appeal the following day. Six days later, the 

district court stayed its conditional-writ order but ordered Gillispie released during the pendency 

of the State’s appeal to our court. The State released Gillispie that same day. 

Gillispie’s success continued in April 2012, when the state court of appeals reversed the 

trial court’s denial of relief on his new-evidence claim, and remanded his case for a new trial. 

The court’s opinion stated that “Gillispie’s conviction and sentences are Vacated”; but the court 

stayed its decision pending the State’s attempt to appeal to the Ohio Supreme Court. That court 

denied leave to appeal on November 7, 2012, at which point the court of appeals lifted its stay 

and Gillispie’s criminal judgment was formally vacated. 

The vacatur of Gillispie’s criminal judgment removed the predicate for federal habeas 

jurisdiction. See Eddleman, 586 F.3d at 413. The district court seemed to recognize as much: in 

a sua sponte order dated November 9, 2012, the court observed that the Ohio courts had “vacated 

the judgment which was the subject of this case.” Relatedly, the vacatur of Gillispie’s criminal 

judgment, combined with his by-then unconditional release, meant that all the purposes of the 

conditional writ had been met; so in the same order the district court ordered the State to “show 

cause not later than November 19, 2012, why this Court should not dissolve its stay pending 

appeal and notify the Sixth Circuit Court of Appeals that the appeal is moot.” In response—and, 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 4 

by all appearances, with the support of both Gillispie and the district court—the State filed a 

motion in our court to dismiss its appeal voluntarily. We granted the motion. 

What the State neglected to seek in its motion to dismiss its appeal, however, was the 

vacatur of the district court’s December 15, 2011 order granting the conditional writ. That relief 

was likely there for the taking, since the State’s appeal (of that order) had become moot through 

no fault of the State. See, e.g., U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 

18, 23 (1994). Instead, the State chose a harder path, asking the district court to vacate its 

conditional-writ order pursuant to Fed. R. Civ. P. 60(b). The district court denied the State’s 

motion; and that denial is the subject of this appeal. 

II. 

We review the district court’s denial of the State’s Rule 60(b) motion for an abuse of 

discretion. Workman v. Bell, 484 F.3d 837, 839-40 (6th Cir. 2007). (We also note that the 

State’s notice of appeal did not encompass orders entered after the district court’s December 20, 

2012 order denying the State’s Rule 60(b) motion; so only the December 20 order is before us 

here.) 

Rule 60(b) provides that, “[o]n motion and just terms, the court may relieve a party or its 

legal representative from a final judgment, order, or proceeding” for reasons the Rule then spells 

out in six subsections. The State argues that three subsections apply here, the first being Rule 

60(b)(4). That subsection allows—indeed perhaps requires, see Philos Techs. v. Philos & D., 

Inc., 645 F.3d 851, 855 (7th Cir. 2011)—the district court to vacate a “judgment [that] is void[.]” 

Fed. R. Civ. P. 60(b)(4). The State contends that the conditional-writ order is void because the 

vacatur of Gillispie’s convictions divested the district court of jurisdiction over his case. But the 

State is focused upon the wrong point in time. “A void judgment is one which, from its 

inception, was a complete nullity and without legal effect.” Lubben v. Selective Service System 

Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir. 1972) (emphasis added); see also, e.g., Northridge 

Church v. Charter Tp. of Plymouth, 647 F.3d 606, 611-12 (6th Cir. 2011). And at the time of its 

inception the conditional-writ order undisputedly was not void. 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 5 

The State next argues that it was entitled to vacatur under Rule 60(b)(5), which provides 

in relevant part that the district court may vacate a judgment that “is based on an earlier 

judgment that has been reversed or vacated.” In the State’s view, the conditional-writ order was 

“based on” Gillispie’s criminal judgment, which has since been vacated. But that is not the sort 

of reliance contemplated by the Rule. Typically, the “based on” language from Rule 60(b)(5) 

applies when “the present judgment is based on the prior judgment in the sense of res judicata or 

collateral estoppel.” Klein v. United States, 880 F.2d 250, 258 n. 10 (10th Cir. 1989). In such 

cases, the later judgment is based on an assumption about the validity of the earlier one; and if 

that assumption proves incorrect, Rule 60(b)(5) might, depending on the circumstances, provide 

a means of vacating the later judgment. See, e.g., Manzanares v. City of Albuquerque, 628 F.3d 

1237, 1240-41 (10th Cir. 2010). But here the opposite is true: the district court’s conditionalwrit order—like every such order—was based on a conclusion about the criminal judgment’s 

invalidity. Indeed the very purpose of a conditional writ is to compel the state to vacate a 

judgment entered in violation of the federal Constitution. See Gall v. Scroggy, 603 F.3d 346, 

353 (6th Cir. 2010). That the order achieves its purpose is no reason to take it off the books. 

That leaves Rule 60(b)(6), which allows a district court to vacate a judgment for “any 

other reason that justifies relief.” The scope of this provision is narrower than it sounds: Rule 

60(b)(6) permits relief only in “unusual and extreme situations where principles of equity 

mandate relief.” Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007) (emphasis in original; 

interior quotations marks omitted). 

 Here, the district court thought that vacatur of its conditional-writ order was inappropriate 

for two principal reasons. The first began with a reversal of sorts: the court rejected its earlier, 

sua sponte conclusion that the vacatur of Gillispie’s criminal judgment had rendered its 

conditional writ moot—a conclusion, one might add, that led the State to seek dismissal of its 

appeal—and now declared that it retained a putative, continuing interest in “enforcing the 

conditional writ[.]” Order Denying Motion to Vacate (“Order”) at 5. Specifically, the court 

noted the State’s intention to proceed anew with its prosecution of Gillispie; and the court 

asserted that its conditional-writ “order was that, unless Gillispie was retried and convicted

before July 1, 2012, the writ would become absolute.” Id. (emphasis added). 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 6 

As an initial matter, the latter assertion amounted to an impermissible change to the 

court’s conditional-writ order, which required the State “to release Petitioner from custody 

unless he is again convicted at a trial commencing not later than July 1, 2012.” (Emphasis 

added.) Thus, the conditional-writ order required only that Gillispie’s new trial commence by 

July 1, 2012; whereas the court’s Rule 60(b) order required that Gillispie be convicted by that 

date. (The Rule 60(b) order added that “[t]he conditional writ order will not be satisfied until 

and unless that new jury convicts Gillispie again.” Order at 5.) “Commence” and “convict” are 

two different things, the former occurring at the trial’s outset, the latter, if at all, at the trial’s end; 

and thus the State is right to complain that the district court purported to increase the burdens 

imposed by its conditional-writ order, in applying a Rule that authorized only “relief” from it. 

Fed. Rule Civ. P. 60(b); see also Girts v. Yanai, 600 F.3d 576, 582 (6th Cir. 2010) (“We do not 

hold that a district court can materially amend its judgment after the state has released a 

petitioner”). 

But more to the point, the district court’s assertion of a prospective interest in the 

conditional writ’s enforcement is flatly inconsistent with our decision in Eddleman. To return to 

first principles: Gillispie filed his habeas petition under 28 U.S.C. § 2254, which grants 

jurisdiction to federal courts to “entertain an application for a writ of habeas corpus in behalf of a 

person in custody pursuant to the judgment of a State court only on the ground that he is in 

custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 

§ 2254(a) (emphasis added). “For federal habeas jurisdiction to exist under § 2254, therefore, a 

state prisoner must be held pursuant to a judgment—rather than, say, an indictment or criminal 

information.” Eddleman, 586 F.3d at 413. Thus, “once the unconstitutional judgment is gone, 

so too is federal jurisdiction under § 2254.” Id. Here, Gillispie’s criminal judgment was gone by 

November 7, 2012—when the Ohio Supreme Court denied review of the courts of appeals’ 

decision that expressly vacated that judgment—which means that, per the plain terms of 

Eddleman, the district court’s jurisdiction over Gillispie’s case was gone by then too. 

Eddleman’s unequivocal holding, standing alone, is enough to establish that the district 

court was without further jurisdiction in Gillispie’s case once his criminal judgment was vacated; 

but it bears mention that even the facts of Eddleman are materially identical to those here. 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 7 

There, as here, the district court granted a conditional writ that ordered the petitioner released 

unless he was retried within a certain time. Id. at 411. There, as here, the state later vacated the 

petitioner’s criminal judgment. Id. There, the district court later concluded that the State had 

missed the retrial deadline set in its conditional-writ order; and thus the court entered another 

order that purported to enforce the conditional writ. Id. at 412. That is the precisely the same 

enforcement power that the district court purported to reserve to itself here. In Eddleman we 

reversed, holding that, once the state vacated the unconstitutional judgment, “per the plain terms 

of § 2254, the district court’s jurisdiction over Eddleman’s case came to an end.” Id. at 413. 

The same is true in Gillispie’s case. In Eddleman, we added that, once the petitioner’s criminal 

judgment was vacated, “[t]he responsibility of ensuring that he received not only a fair trial, but a 

timely one, then passed to the [state trial court] in the first instance.” Id. The same is true here. 

What the district courts in both of these cases overlooked is that § 2254, and not a district 

court’s own conditional-writ orders, defines the limits of the court’s habeas jurisdiction. By its 

terms, § 2254 empowers the district court to achieve a single end: to terminate the petitioner’s 

unconstitutional custody. A district court can achieve that end by granting an absolute writ, 

which itself vacates the unconstitutional judgment and orders the petitioner immediately 

released. Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir. 2006). Or, as an 

“accommodation[]” to the state, the court can grant a conditional writ, which requires the state 

either to vacate the unconstitutional judgment or to replace it with a constitutional one (by 

retrying him) within a certain period of time. Id. at 369. But what the court cannot do is 

continue to enforce the terms of a conditional writ after the petitioner is no longer in custody 

pursuant to an unconstitutional judgment. See, e.g., Eddleman, 586 F.3d at 413; Gall, 603 F.3d 

at 353 (“The federal court retains jurisdiction to afford . . . relief until the unconstitutional 

judgment is gone”); Fisher v. Rose, 757 F.2d 789, 791 (6th Cir. 1985) (“Since Fisher was no 

longer being held pursuant to the constitutionally defective conviction . . . the district court erred 

in ordering Fisher’s release and barring retrial”). 

Neither of the cases cited by the district court support a different conclusion. In Gentry v. 

Deuth, 456 F.3d 687, 692 (6th Cir. 2006), we held that “the district court retained jurisdiction to 

enforce its conditional writ” precisely because “Gentry’s status as a convicted felon apparently 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 8 

remained in force, as the Commonwealth did not nullify her conviction.” And in Girts, we 

carefully explained that the district court’s verbal order “granting Petitioner’s release was issued 

while he was still in custody on the improperly obtained conviction.” 600 F.3d at 580. Nor does 

D’Ambrosio v. Bagley, 656 F.3d 379 (6th Cir. 2011)—the principal case that Gillispie cites to us 

on appeal—authorize the district court to continue enforcement of its conditional writ. There, in 

support of our conclusion that “the district court retained jurisdiction to monitor the state’s 

compliance with the conditional writ[,]” we explained at great length that “D’Ambrosio’s 

convictions were never ‘vacated’ as Eddleman’s convictions were.” Id. at 386, 388; see also id. 

at 387 (“Eddleman is different from this case because D’Ambrosio’s conviction was not 

‘vacated’ as the habeas petitioner’s in Eddleman was”). We added that, in the absence of the 

parties’ agreement that a petitioner’s conviction has been vacated, “[w]hat vacates a conviction is 

an entry in the court docket, which—depending on the state’s procedures—is likely made 

through a court order, or clear actions by the court signifying a vacatur.” Id. at 388. We 

indisputably have such “clear actions” here: the Ohio Court of Appeals’ April 2012 opinion 

(which became final on November 7, 2012) expressly stated that “Gillispie’s conviction and 

sentences are Vacated[.]” 

Nor, contrary to Gillispie’s assertions on appeal, do the putative “collateral 

consequences” of his convictions empower the district court to continue to exercise jurisdiction 

over his case. As an initial matter, all of the documents that Gillispie cites as proof of those 

consequences are more than 18 months old; and during oral argument before our court, 

Gillispie’s counsel notably omitted to rebut the contention of the State’s counsel that none of 

those collateral consequences continue to exist now. But again, more to the point, the district 

court was divested of jurisdiction over Gillispie’s case once the Ohio Court of Appeals vacated 

his criminal judgment. Compare Gentry, 456 F.3d at 692 (“the Commonwealth did not nullify 

her conviction”). If, in fact, Gillispie continues to suffer adverse consequences from his vacated 

convictions, his remedy lies in state court—in the form of a motion to enforce the plain terms of 

the Ohio Court of Appeals’ decision—not in federal court. 

None of this is to say, however, that the district court was without jurisdiction to 

adjudicate the State’s Rule 60(b) motion. To the contrary, “Rule 60(b) has an unquestionably 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 9 

valid role to play in habeas cases.” Gonzalez v. Crosby, 545 U.S. 524, 534 (2005). Indeed, the 

Supreme Court expressly contemplated a motion like the one here. See id. (“In some instances, 

we may note, it is the State, not the habeas petitioner, that seeks to use Rule 60(b), to reopen a 

habeas judgment granting the writ”) (emphasis in original). But the Rule authorizes the court 

only to grant “[r]elief” from an order granting the writ, not to enforce the order after the 

unconstitutional judgment is gone. 

In summary, the district court is without further jurisdiction in Gillispie’s case. Thus, the 

purported “prospective effect” of the court’s conditional-writ order was not a valid reason to 

deny the State’s Rule 60(b) motion. 

 The district court also suggested that all of its conclusions in its order granting relief with 

respect to Gillispie’s Brady claim would bind the parties in his retrial. Order at 11. The State 

appears to disagree, emphasizing that the order was not tested on appeal. We take no position on 

that issue, leaving it to the Ohio courts, in the first instance, to determine the preclusive effect of 

the district court’s order. But we do hold that, to the extent the district court itself purported to 

decide the preclusive effect of its order for purposes of ongoing proceedings in the Ohio courts, 

it was again without jurisdiction to do so. For “[n]either Rule 60(b), 28 U.S.C. § 2254, nor the 

two read together, permit a federal habeas court to maintain a continuing supervision over a 

retrial conducted pursuant to a conditional writ granted by the habeas court.” Pitchess v. Davis, 

421 U.S. 482, 490 (1975). 

 That leaves the State’s principal argument as to why the district court should have 

granted its Rule 60(b) motion. In United States v. Munsingwear, 340 U.S. 36, 40 (1950), the 

Court stated that “the duty of the appellate court” in an appeal that becomes moot “through 

happenstance” is to “vacate the judgment below and remand with a direction to dismiss.” 

Likewise, in U.S. Bancorp, the Court stated that “vacatur must be granted where mootness 

results from the unilateral action of the party who prevailed in the lower court.” 513 U.S. at 23. 

Here, the conditional-writ order’s mootness was the result of Gillispie’s actions, since he was the 

party that sought vacatur of his convictions in the Ohio courts; and thus the State contends the 

district court was obligated to vacate its order. But that conclusion does not follow. 

Munsingwear and U.S. Bancorp concern an appellate court’s duty, under certain circumstances, 
No. 13-3088 Gillispie v Warden, London Corr., Inst. Page 10 

to vacate an order that has become moot on appeal. Those cases do not address whether the 

district court should vacate the same order in later proceedings on remand. 

Moreover, so far as the equities are concerned, the State’s position here is nearly identical 

to that of the United States in Munsingwear. There, the United States appealed an adverse order 

that became moot during the pendency of its appeal, but failed to seek vacatur of the order in 

connection with the dismissal of the appeal. Then, in a later appeal of an order entered on 

remand, the United States sought vacatur of the earlier order. The Supreme Court refused to 

vacate the earlier order, observing that the United States had “slept on its rights, [and] now asks 

us to do what by orderly procedure it could have done” in the first appeal. 340 U.S. at 41. All of 

those circumstances are present here. Plus there are some additional ones that weigh heavily 

against the State’s request: namely, that Rule 60(b)(6) permits relief only in “unusual and 

extreme situations where principles of equity mandate relief[,]” Stokes, 475 F.3d at 735 (internal 

citation omitted); and that we review the district court’s denial of the State’s Rule 60(b) motion 

for an abuse of discretion. Finally, as the Supreme Court stated in Bancorp, we “must also take 

account of the public interest”; and that generally means that judicial precedents “should stand 

unless a court concludes that the public interest would be served by a vacatur.” 513 U.S. at 26 

(internal citation and quotation marks omitted). Without addressing the merits of the district 

court’s conditional-writ order, we see no particular reason why a vacatur of that order would 

serve the public interest here. 

* * * 

 The district court’s December 20, 2012 order denying the State’s Rule 60(b) motion is 

affirmed.