United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY JR. United States District Judge.
Adam Grueninger, a Virginia prisoner proceeding pro
se, submitted this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his
convictions in the Circuit Court for the County of Hanover
("Circuit Court") of two counts of indecent
liberties with a child under age fifteen, two counts of
aggravated sexual battery by a parent with a child at least
thirteen but less than fifteen, one count of rape, three
counts of forcible sodomy, two counts of object sexual
penetration,  nine counts of possession of child
pornography, and one count of distribution of child
pornography. By Memorandum Opinion and Order entered on June
27, 2014, the Court denied Grueninger's § 2254
Petition. See Grueninger v. Dir., Va. Dep't.
ofCorr., No. 3:13CV260, 2014 WL 2925285, at *9 (E.D. Va.
June 27, 2014).
appealed. On February 9, 2016, the United States Court of
Appeals for the Fourth Circuit reversed in part the decision
of this Court and "remand[ed] with instructions that the
district court issue Grueninger a writ of habeas corpus as to
the sexual abuse charges unless the Commonwealth endeavors,
within a reasonable period of time to prosecute him in a new
trial on those counts without utilizing the confession."
Grueninger v. Dir., Va. Dep't. of
Corr., 813 F.3d 517, 532 (2016).
per the directive of the Fourth Circuit, by Memorandum Order
entered on March 3, 2016, the Court informed the parties that
the writ of habeas corpus will issue "unless the
Commonwealth endeavors, within a reasonable period of time,
to prosecute him in a new trial on [the sexual abuse] counts
without utilizing [his] confession." Id. The
Commonwealth has now responded, and explains the following:
In an affidavit, executed March 28, 2016, Ramon E. Chalkey,
III, Commonwealth's Attorney for Hanover County,
Virginia, avers his intention to prosecute the petitioner
upon the sexual abuse charges without utilization of
Grueninger's March 16, 2009 statement to Investigator
David Klisz in the Commonwealth's case-in-chief.
Respondent's Exhibit 1, Chalkey Affidavit, March 28,
2016. He further indicates that the Commonwealth will
prepared to commence trial upon these charges and "any
other indictments which may be brought within 180 days"
of the affidavits execution. Respondent's Exhibit 1.
(Resp. 4, ECF No. 30.) Respondent seeks "a conditional
order of release, granting the Commonwealth of Virginia an
opportunity to correct the constitutional infirmity through a
retrial on the petitioner's 'sexual abuse
charges.'" (Id. (citations omitted).)
pertinent statute provides that a Court shall dispose of a
petition for a writ of habeas relief "as law and justice
require." 28 U.S.C. § 2243. "The typical
relief granted in federal habeas corpus is a conditional
order of release unless the State elects to retry the
successful habeas petitioner" Herrera v.
Collins, 506 U.S. 390, 403 (1993). "District
courts rightly favor conditional grants, which provide states
with an opportunity to cure their constitutional errors, out
of a proper concern for comity among the co-equal
sovereigns." Gentry v. Deuth, 456 F.3d
687, 692 (6th Cir. 2006). Under certain extreme circumstances
not present here, the Court may preclude the Commonwealth of
Virginia from retrying a successful habeas petitioner.
See, e.g., Kane v. Virginia, 419 F.2d 1369,
1373 (4th Cir. 1970) (precluding trial of petitioner who
prevailed on a claim that his speedy trial rights were
violated): Morales v. Portuondo, 165 F.Supp.2d 601.
609 (S.D.N.Y. 2001) (providing instances when federal courts
have barred retrial of a successful habeas petitioner). The
constitutional violation that occurred here does not warrant
the extreme remedy of precluding a retrial. See
Gentry, 456 F.3d at 696-97 (describing the practical
consequences of the grant of habeas relief). The typical
habeas remedy of a conditional grant of habeas relief is all
that justice requires in the instant case.
the writ of habeas corpus will be granted with respect to the
sexual abuse charges if the Commonwealth of Virginia does not
commence the retrial of Grueninger within ninety (90) days of
the dale of entry of this Memorandum Opinion and Order.
See Id. at 692 (explaining that the "district
court retains jurisdiction to determine whether a party has
complied with the terms of a conditional order in a habeas
appropriate Order shall issue.
 The convictions in bold will
hereinafter be referred to as the "sexual abuse