Does a grant of habeas corpus relief constitute a declaration that the petitioner is being held in custody in violation of his constitutional rights?

^2. The grant of habeas corpus relief is a "declar[ation] in essence that the petitioner is being held in custody in violation of his constitutional . . . rights." Harvest v. Castro, 531 F.3d 737, 741 (9^th Cir. 2008). Unless this court's order is reversed on appeal or petitioner is retried and convicted in constitutionally sound proceedings, petitioner is in custody in violation of his federal constitutional rights. For this reason, respondent's representation that prosecutors will retry petitioner if the appeal is unsuccessful does not end the inquiry about whether this court's order should be stayed. Respondent is seeking to delay the retrial and petitioner's release until the appeal is concluded.