Washington v. Jarvis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6607
DARRELL WASHINGTON,
Petitioner - Appellee,
versus
LARRY W. JARVIS,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-02-1798-AM)
Argued: November 30, 2004 Decided: June 1, 2005
Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and Norman K.
MOON, United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion. Judge Shedd wrote a
separate opinion concurring in part and dissenting in part.
ARGUED: Virginia Bidwell Theisen, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellant. Justin S. Antonipillai, ARNOLD & PORTER, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Jerry W. Kilgore,
Attorney General, Richmond, Virginia, for Appellant. Robyn M.
Holtzman, Kathryn E. Taylor, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This matter is an appeal from the district court’s grant of a
writ of habeas corpus based on a violation of the Double Jeopardy
Clause. We agree with the district court that the Supreme Court of
Virginia, in upholding Appellee’s conviction, unreasonably applied
clearly established federal law and made an unreasonable
determination of the facts. We also agree that no proper basis
existed for the trial court’s declaration of a mistrial.
Therefore, we affirm.
I.
At issue in this appeal is the propriety of a habeas grant
setting aside the conviction of Appellee Darrell Washington
(“Washington”). In August 1999, Washington was indicted in
Virginia state court for aggravated robbery. In Washington’s
original trial on December 15, 1999, the court came to a point at
the beginning of a scheduled two-day trial in which it had
empaneled and sworn a jury of twelve, but one of the jurors was to
be excused by 5:30 P.M. on the first day and another was to be
excused for the entire second day. Recognizing that these
circumstances would likely require the use of alternate jurors, the
court sought to select alternates pursuant to its authority under
2
Section 8.01-360 of the Virginia Code.1 Although potential
alternates remained in the jury pool of twenty, only two remained
whom counsel had not already struck. Virginia procedure, however,
requires that at least three veniremen be available for each
alternate.2 The court attempted to cure this problem by proposing
an unorthodox selection procedure, but both sides objected and no
solution was availing. The result was the following colloquy among
the court, Washington’s counsel (Ms. Wolfe), and the Commonwealth’s
Attorney (Mr. Hudgins):
The Court: That’s a mistrial.
Ms. Wolfe: Your Honor, and I’m going to say this—
The Court: Now you are going to have jeopardy.
Ms. Wolfe: We have jeopardy, but the Court—
The Court: The Commonwealth won’t agree to the cure.
Mr. Hudgins: There wasn’t a jury sworn.
The Court: No, sir.
Ms. Wolfe: The jurors were sworn.
The Court: I tried to get this case tried and tried
to get it done, but we are going to fight
over this. And you want your statutory
right. You want your statutory right.
We do not have sufficient jurors to have
a replacement for the juror sworn.
That’s a mistrial.
Ms. Wolfe: Thank you, Your Honor.
1
Section 8.01-360 provides in part: “Whenever in the opinion
of the court the trial of any criminal or civil case is likely to
be a protracted one, the court may direct the selection of
additional jurors who shall be drawn from the same source, in the
same manner and at the same time as the regular jurors.” Va. Code.
Ann. § 8.01-360 (Michie 2000).
2
Section 8.01-360 provides in part: “When one additional juror
is desired, there shall be drawn three veniremen, and the plaintiff
and defendant in a civil case or the Commonwealth and accused in a
criminal case shall each be allowed one peremptory challenge.” Va.
Code. Ann. § 8.01-360 (Michie 2000).
3
Mr. Hudgins: I’m going to ask, Your Honor—could we
place it on the docket for another day?
The Court: Well, of course that’s what we are going
to do.
Ms. Wolfe: Well, I think there’s really an argument
about—
The Court: Now she’s going to claim that jeopardy
attaches.
Ms. Wolfe: Well, it did attach because the jurors
were sworn.
We will get the transcript—
The Court: Now she is going to move to dismiss on
double jeopardy grounds.
You’re objecting to my attempted cure to
get a jury in the box, and you have a
right to do that, and you have statutory
authority for it.
Ms. Wolfe: And we can set a date.
The Court: Bring the jurors in, both sides, lobby
and here.
J.A. 54–56. Commenting that “[w]e can’t comply with the Code of
Virginia and give both the defense and Commonwealth their rights
under the statute,” the trial court determined that “the
[legislative] statement compels a declaring of a mistrial.”
J.A. 57. Accordingly, the trial court excused the jury panel and
prospective jurors and scheduled a new trial for a later date. In
justifying this act, the court explained that it would be
impossible to finish the trial within one day, and on the second
scheduled day the court would be unable to have twelve jurors.
J.A. 58–59. The court did not mention any other basis for the
mistrial. It also did not mention considering any other
alternatives to solving the empaneling problem, such as continuing
the existing trial to a date when all jurors would be available.
4
At the close of the proceedings, Washington’s counsel requested
that a transcript of the trial be prepared “fairly quickly,” which
the trial court acknowledged by stating “[t]hank you.” J.A. 60-61.
Several months later, on March 6, 2000, a second trial was
held before a new judge. Prior to the selection of the jury in
this second trial, Washington’s counsel moved for a dismissal on
double jeopardy grounds, which the second judge denied. In doing
so, the second judge reaffirmed the first judge’s finding that
manifest necessity existed to declare a mistrial. J.A. 93.
Subsequently, Washington was tried and convicted of robbery and the
use of a firearm in the commission of a robbery.
Washington appealed his conviction in the second trial to
Virginia’s intermediate appeals court, the Virginia Court of
Appeals, arguing in part that the second trial violated the Double
Jeopardy Clause of the Fifth Amendment. In an opinion dated March
27, 2001, the Virginia Court of Appeals held that the first
Virginia trial judge failed to consider possible alternatives to a
mistrial, and therefore, “because no manifest necessity required
the trial judge to declare a mistrial, the double jeopardy
prohibition bars the retrial of appellant.” Washington v.
Commonwealth, 543 S.E.2d 638, 646 (Va. Ct. App. 2001). The court
also expressly rejected the Commonwealth’s claim that Washington
had not objected to the declaration of a mistrial and that
therefore his appeal was procedurally barred. Id. at 640 n.1.
5
Accordingly, the Virginia Court of Appeals reversed and dismissed
Washington’s convictions. Id. at 646.
After this reversal by the Virginia Court of Appeals, the
Commonwealth then appealed to the Supreme Court of Virginia.
After initially refusing to allow the Commonwealth to appeal, the
Supreme Court of Virginia ultimately decided to hear the case.3 At
this appeal, the Commonwealth argued that Washington had implicitly
consented to the first Virginia trial judge’s declaration of a
mistrial by not explicitly objecting to it. The Supreme Court of
Virginia accepted this argument and determined that no double
jeopardy violation had occurred. Accordingly, in an order dated
March 1, 2002, the Supreme Court of Virginia reversed the Court of
Appeals judgment and reinstated Washington’s convictions. Because
of its dispositive finding that Washington had consented to the
mistrial, the Supreme Court of Virginia did not address whether
manifest necessity would have required a mistrial notwithstanding
Washington’s consent.
Upon this judgment by the Supreme Court of Virginia,
Washington filed a petition for rehearing, which the Supreme Court
3
The Supreme Court of Virginia first denied the appeal in an
order dated July 25, 2001. Commonwealth v. Washington, R. No.
010913 (Va. July 25, 2001). The Commonwealth then filed a petition
for rehearing, which the Supreme Court of Virginia also denied in
an order dated September 14, 2001. Commonwealth v. Washington, R.
No. 010913 (Va. Sept. 14, 2001). One week later, however, in an
apparent sua sponte order, the Supreme Court of Virginia changed
its position and granted the rehearing. Commonwealth v.
Washington, R. No. 010913 (Va. Sept. 21, 2001).
6
of Virginia denied on April 19, 2002. Commonwealth v. Washington,
R. No. 010913 (Va. Apr. 19, 2002). Washington then filed a state
habeas petition with the Supreme Court of Virginia, which was
dismissed on November 13, 2002. Washington v. Warden, R. No.
010913 (Va. Nov. 13, 2002). Having exhausted his state habeas
remedies, Washington petitioned the Federal District Court for the
Eastern District of Virginia for federal habeas corpus relief. In
the petition, Washington argued in part that the Supreme Court of
Virginia failed to recognize that Washington preserved his double
jeopardy rights for appeal by implicitly objecting to the first
Virginia trial judge’s declaration of a mistrial. The district
court granted his petition, finding the following determinations of
the Supreme Court of Virginia to be “unreasonable”: (1) its bright-
line test in which failure to object, by itself, qualifies as
consent to a mistrial, and (2) its factual determination that
Washington did not object to the court’s sua sponte declaration of
a mistrial. The Commonwealth now appeals.
II.
Before considering the merits of the case, a threshold
question must be addressed. Washington argues that this Fourth
Circuit Court of Appeals panel is not properly constituted because
it includes a district court judge, who sits by designation of the
Chief Judge. A federal statute, 28 U.S.C. § 292, empowers a
7
federal court of appeals chief judge to designate district judges
within the circuit for temporary service on the court of appeals.
Washington contends that this statute is an unconstitutional
violation of the Appointments Clause, which provides specific
procedures for the filling of Article III judgeships. He argues
that the President alone has the authority to appoint judges to
service on a court of appeals, whether such appointment is
permanent or temporary.
The Appointments Clause provides in part that the President
shall have the power to nominate “Judges of the supreme Court, and
all other Officers of the United States.” U.S. Const. art. II,
§ 2, cl. 2 (emphasis added). Article III provides that the
judicial power “shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and
establish.” U.S. Const. art. III, § 1 (emphasis added). No other
provision of the Constitution provides further instruction
regarding the inferior courts.4 In this sense, the Constitution
makes a deliberate judicial division only between the Supreme Court
and other Article III courts; it does not distinguish between
levels within the inferior federal courts. Because the
4
Washington also finds support in the Recess Appointments
Clause, U.S. Const. art. II, § 2, cl. 3, which concerns temporary
appointments. This clause has no application here, as it exists
for the limited purpose of allowing the President temporarily to
fill offices “during the Recess of the Senate,” when it would
otherwise be impossible to nominate and appoint such officers.
8
Constitution does not contemplate any particular judicial divisions
within the inferior courts, the structure of that system has been
left to congressional discretion. Congress is free to determine
not only which inferior courts shall exist, but also what the
jurisdiction and hierarchy of those courts shall be, and what
powers and duties the judges of those courts shall have.
Accordingly, while the Appointments Clause does govern the
procedure for filling Article III judgeships, Congress nevertheless
may define the responsibilities of those judgeships.
The history of the U.S. Court of Appeals supports this view.
As Washington himself recognizes, Congress has a long history of
using its discretion to modify the duties and powers of the
inferior courts. In particular, Congress historically has granted
district judges the power to sit on panels of the U.S. Court of
Appeals. Indeed, the original Court of Appeals, created along with
the District Court by the Judiciary Act of 1789, was composed of
one district court judge and two members of the Supreme Court
riding circuit. See 13 Charles A. Wright et al., Federal Practice
And Procedure § 3503–3504. Later, when Congress passed the Evarts
Act of 1891, the Court of Appeals became staffed by permanent
appeals judges, but even then district judges made regular
appearances on these panels. Although Washington argues that the
Evarts Act dramatically altered the role of district judges in the
inferior courts by making district and circuit judgeships distinct
9
principal offices, the limited academic commentary on this subject
suggests just the opposite. See id.; Diluting Justice on Appeal?:
An Examination of the Use of District Court Judges Sitting by
Designation on the United States Courts of Appeals, 28 U. Mich.
J.L. Ref. 351, 360 (1995) (“From the earliest date . . . district
judges were authorized to sit by designation as visiting judges on
the new courts of appeals.”). In this sense, history confirms that
Congress always has had the discretion to modify the powers and
duties of judges within the inferior courts.
Exercising this discretion, Congress has chosen to enact the
designation statute that Washington challenges, 28 U.S.C. § 292.
The statute specifically modifies the duties of district judges to
allow for their temporary service on panels of the Court of
Appeals. Such a change is entirely consistent with Congress’s past
modifications to the inferior courts. In fact, this alteration is
far less sweeping than the changes imposed upon the Court of
Appeals by the Evarts Act of 1891, whose constitutionality
Washington has not questioned. Therefore, we see no reason why 28
U.S.C. § 292, too, should not pass constitutional muster.
Washington argues that allowing designation would subvert the
President’s appointment power by granting district judges greater
powers than those the President intended to grant them. Yet the
President surely is aware when nominating district judges that
§ 292 empowers them to serve temporarily on the Court of Appeals.
10
If this matter plays a significant role in the President’s choice
of appointment, then presumably the President takes it into account
when deciding to appoint a district judge in the first place.
For these reasons, Washington’s arguments are unavailing, and
it is proper for a district judge to sit on this panel by the
designation of the Chief Judge. This panel therefore may hear the
merits of the appeal.
III.
We review the district court’s conclusions of law, including
its ultimate determination that Appellee has established a double
jeopardy violation entitling him to habeas relief, de novo. See
Allen v. Lee, 366 F.3d 319, 323 (4th Cir. 2004). Under the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254, if a state court already has adjudicated a claim against
the defendant, a federal court may grant habeas relief only if the
state court’s adjudication was contrary to, or an unreasonable
application of, clearly established federal law, or was based on an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d);
Williams v. Taylor, 529 U.S. 362, 403–13 (2000); Richmond v. Polk,
375 F.3d 309, 321 (4th Cir. 2004). In all other circumstances, the
AEDPA standard requires deference to a state court’s decision on
the merits. See id.11
The unreasonable application clause from § 2254 is highly
deferential to state courts. Under this standard, “a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the state-court decision
applied [the law] incorrectly,” Woodford v. Visciotti, 537 U.S. 19,
24–25 (2002) (citation omitted), or even if it finds that the state
court’s actions to be “clear error.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003). Nevertheless, this standard does allow the issuance
of a writ for state court actions that are “objectively
unreasonable.” Id. In defining what is unreasonable, the United
States Supreme Court has suggested that every application of law
has a certain range of reasonableness, but it also has recognized
that ultimately, “[t]he term ‘unreasonable’ is a common term in the
legal world and, accordingly, federal judges are familiar with its
meaning.” Yarborough v. Alvarado, 541 U.S. 652, __, 124 S. Ct.
2140, 2149 (2004) (citing Williams v. Taylor, 529 U.S. 362, 410–11
(2000)).
The Commonwealth argues that the district court erred in three
respects. Specifically, it contends that the district court erred:
(1) in failing to recognize that the Supreme Court of Virginia
applied Virginia’s contemporaneous objection rule; (2) in finding
that the Supreme Court of Virginia’s determination that Washington
consented was an unreasonable application of clearly established
United States Supreme Court law and based on an unreasonable
12
determination of the facts; and (3) in finding that there was no
manifest necessity to support the trial court’s declaration of a
mistrial. We consider these arguments in turn.
A.
As a threshold matter, we disagree that consideration of the
merits of this case is precluded by a Virginia procedural bar.
Appellant argues that the Supreme Court of Virginia applied its
contemporaneous objection rule, Supreme Court of Virginia Rule
5:25, to bar consideration of the double jeopardy issue.5 For at
least three reasons, however, the record indicates that no
procedural bar was applied. First, and most obviously, the Supreme
Court of Virginia did not give it as a reason for its ruling.
Although the court’s majority did cite a host of Virginia cases
invoking Rule 5:25, its opinion nevertheless came to a substantive
conclusion—a result that is inconsistent with the application of a
procedural bar. Specifically, the court determined that “[having
consented to the mistrial, the defendant waived his double jeopardy
rights.” Commonwealth v. Washington, 559 S.E.2d 636, 639 (Va.
5
Supreme Court of Virginia Rule 5:25 is a state procedural
appeal rule whereby a party does not preserve an issue for appeal
if he or she fails to offer a contemporaneous objection: “Error
will not be sustained to any ruling of the trial court or the
commission before which the case was initially tried unless the
objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable this Court to
attain the ends of justice.” Sup. Ct. Va. R. 5:25.
13
2002)(emphasis added). Such a holding would not have been
necessary had Rule 5:25 precluded substantive analysis.
Second, based upon the unique manner in which the Supreme
Court of Virginia discussed Rule 5:25, we cannot assume that it
intended to apply Rule 5:25 implicitly. Significantly, the
majority cited a long string of Virginia cases discussing the
jurisprudence of Rule 5:25, but it then failed to make any
application of these cases to Washington’s circumstances. In fact,
without further comment, the majority abruptly turned to its
substantive conclusions. Commonwealth v. Washington, 559 S.E.2d
636, 639 (Va. 2002). This omission is telling. In the past, when
the Supreme Court of Virginia has desired to apply the procedural
bar, it has been very clear in doing so. Indeed, this clarity is
demonstrated by the very Rule 5:25 cases that the majority cited in
its opinion. See Remington v. Commonwealth, 551 S.E.2d 620, 634
(Va. 2001) (“We will not consider the defendant's contentions
because they are procedurally defaulted.”); Schmidt v.
Commonwealth, 547 S.E.2d 186, 194 (Va. 2001), cert. denied, U.S.
(2002) (“Because Schmidt failed to object contemporaneously to the
admission of this evidence, Schmidt has waived this objection on
appeal. Rule 5:25.”); Overtone v. Commonwealth, 539 S.E.2d 421,
423 (Va. 2000) (“His failure to make contemporaneous objections at
trial precludes consideration of those issues on appeal. Rule
5:25.”). For this reason, the fact that the majority decided to
14
cite these very Rule 5:25 cases and then decline to follow their
example is significant. Moreover, it should be noted that in the
prior history of this case, the Virginia Court of Appeals also
specifically addressed the procedural bar issue in its own opinion.
In deliberate fashion, it explicitly rejected this claim.6
Washington v. Commonwealth, 543 S.E.2d 638, 640 n.1 (Va. Ct. App.
2001). If the Supreme Court of Virginia had intended to reject
this ruling by the Virginia Court of Appeals, one might expect to
see a reference to it in its opinion. And yet the Supreme Court of
Virginia did not even mention the lower court’s consideration of a
procedural bar. In this sense, the surrounding circumstances
strongly suggest that the majority was not applying a procedural
bar.
Third, the Virginia contemporaneous objection rule could not
have applied because the record indicates that the actions of
Washington’s counsel would have satisfied Virginia’s requirements
for an objection. Rule 5:25 provides merely that the objection
must be “stated with reasonable certainty at the time of the
ruling.” Sup. Ct. Va. R. 5:25 (emphasis added). In addition, the
Virginia Code provides that when voicing an objection to the court,
6
The Virginia Court of Appeals rejected the application of its
equivalent version of procedural bar rule, Rule 5A:18. Virginia
courts have routinely found that Rule 5A:18 is “virtually
identical” to Rule 5:25, Jimenez v. Commonwealth, 402 S.E.2d 678,
680 (Va. 1991), and that “what is said in application of one
applies to the other.” Perez v. Commonwealth, 580 S.E.2d 507, 513
n.8 (Va. Ct. App. 2003) (Agee, J., concurring).
15
a party need not make a formal exception, but only put the court on
notice of the nature of the objection and the grounds for making
it. See Va. Code Ann. § 8.01-384 (Michie 2000) (providing that “it
shall be sufficient that a party, at the time the ruling or order
of the court is made or sought, makes known to the court the action
which he desires the court to take or his objections to the action
of the court and his grounds therefor”). Furthermore, it is clear
that Rule 5:25 itself exists for practical, rather than formalistic
purposes. “This rule exists to protect the trial court from
appeals based upon undisclosed grounds, to prevent the setting of
traps on appeal, to enable to trial court to rule intelligently,
and to avoid unnecessary reversals and mistrials.” Fisher v.
Commonwealth, 374 S.E.2d 46, 52 (Va. 1988), cert. denied, 490 U.S.
1028 (1989).
Recognizing these standards, the Supreme Court of Virginia
itself has refused to exercise Rule 5:25 despite a party’s failure
to object explicitly when a court has notice of the objection and
an opportunity to make a meaningful ruling on it. See Ward v.
Insurance Co. of N. Am., 482 S.E.2d 795, 796 n.1 (Va. 1997)
(finding that notwithstanding her failure to object, a party’s
appeal right was preserved because “[t]he record is clear that Ward
argued [the issue] to the trial court” and she “was not required to
make a formal objection to the trial court’s order because the
court was aware of her objections”). Cf. Johnson v. Raviotta, 563
16
S.E.2d 727, 732 (Va. 2002) (finding no waiver when a party had
argued that the jury should not be allowed to consider certain
testimony and the trial court was aware of this objection and could
have provided an appropriate instruction to the jury).
In the instant case, it is clear that the arguments of
Washington’s counsel satisfied these Virginia procedural standards.
As discussed more fully in Section III.B.3, infra, the first
Virginia trial judge certainly was aware of Washington’s counsel’s
double jeopardy objections before finalizing the mistrial, for he
specifically stated during the proceedings, “[n]ow she’s going to
move to dismiss on double jeopardy grounds.” J.A. 55. Under a
plain reading of the Virginia procedural statutes and case law
concerning contemporaneous objections, therefore, Washington would
have satisfied the requirements to preserve the double jeopardy
issue for appeal. In this sense, the circumstances further suggest
that the Supreme Court of Virginia did not intend to apply Rule
5:25 as a procedural bar.
Rather than using Virginia Supreme Court Rule 5:25 in its
traditional sense, it appears that the majority was offering the
jurisprudence of Rule 5:25 as analogous case law to support its
substantive conclusion that waiver had occurred. Under such
reasoning, the circumstances of Washington’s objection would not
only cast doubt upon whether he had satisfied Virginia’s
contemporaneous objection rule, but they would also tend to suggest
17
a constitutional waiver of Washington’s underlying double jeopardy
rights. To be sure, such an argument would erroneously conflate
the related but independent concepts of constitutional waiver rules
and contemporaneous objection rules. Indeed, the state’s
contemporaneous objection standard requires far more vigilant
action from a party to preserve rights than does the constitutional
standard for withholding consent. Whereas the Virginia procedural
bar rule will cause a party to lose its appeal rights if it does
not state an objection “with reasonable certainty,” Sup. Ct. Va. R.
5:25, constitutional waiver rules “indulge every reasonable
presumption against waiver” of fundamental rights. See, e.g.,
Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1942). Regardless
of the merit of such reasoning, however, the majority evidently was
not applying Rule 5:25 as a procedural bar.
B.
Appellant next argues that the Supreme Court of Virginia’s
decision was neither an unreasonable application of clearly
established federal law nor an unreasonable determination of the
facts. As to these claims, which are at the heart of the appeal,
we disagree on both counts.
18
1.
Before considering Appellant’s claims, we must first address
the applicable federal law. The Double Jeopardy Clause of the
Fifth Amendment protects a criminal defendant from being subjected
to successive prosecutions for the same offense. It grants a
criminal defendant not merely a safeguard from the retrial of
unsuccessful prosecutions, but also a right to have his “trial
completed by the first jury empaneled to try him.” Oregon v.
Kennedy, 456 U.S. 667, 673 (1982). In jury trials, this right
attaches as soon as the jury has been sworn. Serfass v. United
States, 420 U.S. 377, 388 (1975). Two exceptions exist to this
general right, however. First, a court may declare a mistrial if
the defendant, without intermeddling or goading from the
prosecution, freely consents to the mistrial. Kennedy, 456 U.S. at
674. Second, even if a defendant does not consent, a court
nevertheless may declare a mistrial if it makes a factual
determination that there is “manifest necessity” to do so. United
States v. Dinitz, 424 U.S. 600, 606–607 (1976).
The United States Supreme Court has long since adopted a
“totality of the circumstances” test for determining whether
manifest necessity exists. See United States v. Sanford, 429 U.S.
14, 15–16 (1976) (citing United States v. Perez, 22 U.S. (9 Wheat.)
579, 580 (1824)). In Justice Story’s classic formulation, courts
“are to exercise a sound discretion on the subject; and it is
19
impossible to define all the circumstances, which would render it
proper to interfere. To be sure, the power ought to be used with
the greatest caution, under urgent circumstances, and for very
plain and obvious causes.” Perez, 22 U.S. (9 Wheat.) at 580. More
recently, the Supreme Court has emphasized that this manifest
necessity standard requires careful deliberation and consideration.
“[T]he key word ‘necessity’ cannot be interpreted literally;
instead . . . we assume that there are degrees of necessity and we
require a ‘high degree’ before concluding that a mistrial is
appropriate.” Arizona v. Washington, 434 U.S. 497, 506 (1978). In
affirming a trial court’s finding of manifest necessity, the
Arizona Court was careful to note “that the trial judge acted
responsibly and deliberately, and accorded careful consideration to
respondent’s interest in having the trial concluded in a single
proceeding,” thereby exercising “sound discretion.” Id. at 516(emphasis added). Lower courts have acknowledged this clearly
established Supreme Court principle by requiring that a trial court
consider alternatives to a mistrial. “In order to determine if the
mistrial was required by manifest necessity, the critical inquiry
is whether less drastic alternatives were available.” United
States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993) (citing
Harris v. Young, 607 F.2d 1081, 1085 n.4 (4th Cir. 1979)). See
also United States v. Jorn, 400 U.S. 470 (1971) (holding that it
was an abuse of discretion for trial judge to declare a mistrial
20
without considering alternatives to the mistrial). When such
alternatives exist, manifest necessity does not exist for a
mistrial. See Shafer, 987 F.2d at 1058, Harris, 607 F.2d at1085–86. A continuance is one viable alternative to declaring a
mistrial. See Jorn, 400 U.S. at 487 (citing Perez, 22 U.S. (9
Wheat.) at 580).
The “totality of the circumstances” test applies not only to
a court’s determination of whether manifest necessity exists, but
also to its determination of whether consent has occurred. See
Sanford, 429 U.S. at 16 (“The government’s right to retry the
defendant, after a mistrial, in the face of his double jeopardy
claim is generally governed by the test laid down in Perez.”)
(emphasis added) (citation omitted). Lower court rulings have not
deviated from this standard, but rather built upon it. See, e.g.,
United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir. 1973),
cert. denied, 414 U.S. 873 (1973); United States v. Nichols, 977
F.2d 972, 974 (5th Cir. 1992). Therefore, while it is indeed
possible for a court to infer consent based on a defendant’s simple
silence, it may only do so if the totality of the circumstances
justifies such a finding. See Goldstein, 479 F.2d at 1067(“Consent need not be express, but may be implied from the totality
of the circumstances attendant on a declaration of mistrial.”);
United States v. Gantley, 172 F.3d 422, 428–29 (6th Cir. 1999)
(finding that “simple silence” can only be an indication of consent
21
if the totality of the circumstances positively indicated that
silence “was tantamount to consent”). Moreover, the Supreme
Court’s overarching principles regarding consent are also clearly
established. While a court need not satisfy itself that the
consent was “knowing, intelligent, and voluntary,” United States v.
Dinitz, 424 U.S. 600, 609 n.11 (1976), it should also “indulge
every reasonable presumption against waiver” of fundamental rights.
See, e.g., Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1942).
Further, if a court has any doubts regarding the status of those
rights, it should resolve them “in favor of the liberty of the
citizen, rather than exercise what would be an unlimited,
uncertain, and arbitrary judicial discretion.” Downum v. United
States, 372 U.S. 734, 738 (1963) (quoting United States v. Watson,
28 F. Cas. 499, 501 (S.D.N.Y. 1868)).
Finally, the Supreme Court has also made clear its standards
for effectively voicing objections. In court proceedings, a party
need not use any particular language to preserve an objection,
provided that the court understands the objection and its basis.
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174 (1988) (noting
that a party can preserve an objection by making “known to the
court the action which the party desires the court to take or the
party's objection to the action of the court and the grounds
therefor”) (quoting Fed. R. Civ. P. 46). See also Mickens v.
22
Taylor, 535 U.S. 162, 168 (2002); Holloway v. Arkansas, 435 U.S.
475, 490 (1978).
Guided by these standards, we may now turn to consider the
Supreme Court of Virginia’s application of federal law in the
instant case.
2.
The first prong of Appellant’s claim concerns the Supreme
Court of Virginia’s application of federal law regarding the Double
Jeopardy Clause, which the court employed to determine that waiver
had occurred. The Supreme Court of Virginia began its analysis by
acknowledging that the Fifth Amendment grants a criminal defendant
the right to have his trial completed by a single tribunal. It
then explained that a defendant’s double jeopardy protections
nevertheless may be waived, and that “consent to a mistrial is
implied when a defendant had an opportunity to object to a mistrial
but failed to do so,” citing to United States v. Buljubasic, 808
F.2d 1260, 1265–66 (7th Cir. 1987), Goldstein, 479 F.2d at 1067,
and United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984)
(cited with approval in Peretz v. United States, 501 U.S. 923, 936
(1991)). J.A. 176. Next, the court described a number of Virginia
cases applying the Virginia contemporaneous objection rule, Rule
5:25, to preclude appeal when a timely objection was not made.
Finally, applying these standards to the facts, the court held that
23
Washington had consented to the mistrial because his counsel failed
to make “an express objection to the circuit court’s declaration of
a mistrial.” Commonwealth v. Washington, 559 S.E.2d 636, 639 (Va.
2002). After it issued its holding, the court later explained that
it was consistent with one of its earlier decisions. In doing so,
it noted that Washington’s counsel “participated, without
objection, in the selection of a new trial date,” and that she did
not exercise the “specific objections” regarding Double Jeopardy
that she had made in the past.
This application of federal law by the Supreme Court of
Virginia was unreasonable. While the Supreme Court of Virginia did
later refer to other actions of Washington’s counsel, its holding
focused solely on the bright-line issue of whether Washington’s
counsel had explicitly objected. Its analysis makes clear that it
relied on this single issue, and not the other points it discussed
later, in determining that Washington had consented.7 As discussed
7
Further, even if these two other issues had been a further
basis for the court’s finding of consent, we still would find that
the court’s decision was unreasonable. "Under the 'unreasonable
application' clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from this Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case." Williams v. Taylor, 529 U.S.
362, 413 (2000). Thus, even if the court’s reference to these
issues is taken to suggest that it was applying the totality of the
circumstances standard, the court also must be reasonable in
determining what constitutes the totality of the circumstances.
Here, even considering these potential other bases for its ruling,
the court’s “totality” analysis would fail. Neither basis would be
relevant to evaluating the totality of the circumstances. First,
as discussed in Section III.B.3, infra, any possible participation
24
above, the United States Supreme Court has always required that
consent to mistrial must be determined based on a “totality of the
circumstances.” It has never adopted the bright-line rule, used
here by the Supreme Court of Virginia, that consent is implied when
a defendant has an opportunity to object but does not explicitly
express an objection. Further, in focusing on whether Washington’s
counsel made this express objection, the Supreme Court of Virginia
disregarded clearly established Supreme Court law concerning the
sufficiency of an objection. This standard focuses not on the use
of express language, but rather upon making “known to the court the
action which the party desires the court to take or the party's
objection to the action of the court and the grounds therefor."
Beech Aircraft, 488 U.S. at 174. In this sense, the Supreme Court
of Virginia unreasonably applied clearly established United States
Supreme Court law.
Parenthetically, the Supreme Court of Virginia’s bright-line
rule regarding consent also is not supported by the federal court
of appeals cases cited in its opinion. These cases are consistent
by Washington’s counsel in setting a new trial came after the
double jeopardy issue had been raised, rendering the participation
irrelevant. Second, the fact that Washington’s counsel had made
more “specific objections” earlier in the proceedings has no
bearing on the legal sufficiency of the objection at issue. To be
valid, an objection need only put the court on notice of the
exception and its legal basis. Beech Aircraft, 488 U.S. at 174.
Thus, even if the Supreme Court of Virginia had justified its
ruling on these other bases too, its ruling still would be
unreasonable.
25
with the well-settled United States Supreme Court principle that
consent must be considered within the totality of the
circumstances. Buljubasic qualified the totality of the
circumstances principle to emphasize that “[p]arties may give
consent in many ways.” Buljubasic, 808 F.2d at 1566. As an
example, the court stated that consent would be implied if a
defendant remained silent after a judge stated, “I think a mistrial
would be a good idea, but think this over and let me know if you
disagree.” Id. It did not, however, conclude that waiver should
be inferred any time there is an opportunity for objection and an
express objection is not made. Similarly, Goldstein found that a
defendant’s silence qualified as an indication of continued support
for a mistrial when less than two hours before, the defendant had
suggested that the jury was deadlocked. Goldstein, 479 F.2d at
1067. The court there went on to emphasize that consent may be
implied from “the totality of the circumstances attendant on the
declaration of mistrial.” Id. More significantly, it also
emphatically stated that it would not go so far as to hold that “in
the absence of an express objection to discharging the jury,
consent is, in effect, to be presumed.” Id. at 1067 n.11.
Finally, Bascaro found that waiver had occurred when the issue had
never been asserted at trial. Bascaro, 742 F.2d at 1365 (citing
Grogan v. United States, 394 F.2d 287, 289 (5th Cir. 1967) (noting
that double jeopardy assertions need to be “affirmatively raised at
26
some point in the proceedings”)).
Each of these cases is in harmony with the United States
Supreme Court’s well-settled “totality of the circumstances”
standard and its longstanding principle that dictates against
presuming a defendant’s waiver of fundamental rights. More
significantly, nothing in any of these cases reasonably can be
taken to mean that despite such standards, a failure to make an
“express objection” when responding to a judge’s mistrial
declaration necessarily implies consent. In focusing particularly
on the failure of Washington’s counsel to make “an express
objection,” the Supreme Court of Virginia ignored its obligation to
consider these fundamental standards. In this sense, its
application of federal law was unreasonable.
3.
The second prong of Appellant’s claim concerns the Supreme
Court of Virginia’s factual determinations based on the record.
Even if we were to accept that the Supreme Court of Virginia
reasonably applied federal law in making its decision, the factual
basis that the court used in applying the law also must be
reasonable for its judgment to pass muster. In its factual
analysis, the majority made the following determination:
[D]efendant’s counsel in this case did not object to a
new trial once the circuit court had declared a mistrial.
27
Indeed, defendant’s counsel in this case actually
requested that the court set a date for a new trial and
she participated, without objection, in the selection of
a new trial date. Moreover, the record in this case
clearly shows that during the first trial, defendant’s
counsel made clear and unequivocal objections to rulings
of the circuit court that were adverse to her position.
When she desired to object, she made specific objections.
And, as we have already stated, she made no such
objection to the court’s declaration of a mistrial.
Washington v. Commonwealth 559 S.E.2d 636, 640 (Va. 2002).
This determination that Washington’s counsel failed to object
to the declaration of a mistrial is unreasonable in light of the
record. Objections need not contain any particular talismanic
phrase to be valid. Rather, they must “make known to the court the
action the party desires the court to take or . . . the grounds
therefor.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174
(1988). The same standard governs in Virginia, where “[f]ormal
exceptions to rulings or orders of the court shall be unnecessary.”
Va. Code. Ann. § 8.01-384 (Michie 2000). The Virginia procedural
rules further provide that “it shall be sufficient that a party, at
the time the ruling or order of the court is made or sought, makes
known to the court the action which he desires the court to take or
his objections to the action of the court and his grounds
therefor.” Id.
It is true that Washington’s counsel did not explicitly state
the words “I object” in addressing the first Virginia trial judge’s
declaration of a mistrial. Her language, however, taken in the
28
context of the discussion, did make it clear to all relevant
parties that she was contesting the issue of double jeopardy.
Directly after the first Virginia trial judge first declared a
mistrial due to the empaneling problem, counsel began to voice her
objection. She stated, “[y]our honor, and I’m going to say this—.”
J.A. 54. Before she could finish her sentence, however, the court
completed it for her, acknowledging “[n]ow you are going to have
jeopardy.” Id. (emphasis added). Washington’s counsel then
confirmed that this was indeed the point she intended to raise by
repeating, “[w]e have jeopardy.” Id. (emphasis added). Upon
hearing this statement, the court then indicated that it was aware
of its meaning. Significantly, rather than contesting counsel’s
claim that jeopardy existed, the court lamented to both parties
that there was no way to fix this problem, declaring, “[t]he
Commonwealth won’t agree to the cure.” Id. When the Commonwealth
in response tried to suggest that double jeopardy concerns did not
apply by stating that the jury panel had not yet been sworn,
Washington’s counsel again intervened. She noted, “[t]he jurors
were sworn,” emphasizing a point which would be the basis of any
double jeopardy claim. J.A. 55. After that statement, the court
once again indicated that it recognized the significance of
Washington’s counsel’s point by acknowledging the impasse that the
circumstances had created. The court exclaimed to both parties in
frustration, “I tried to get this case tried, and tried to get it
29
done, but we are going to fight over this. And you want your
statutory right.” Id.
This brief colloquy alone strongly suggests that Washington’s
counsel did take the steps necessary to voice an objection.
Specifically, before she “was cut off . . . by the judge,
[Washington’s] counsel began to articulate the argument” and “the
judge's response suggests that he perceived the . . . argument.”
Beech v. Rainey Aircraft, 488 U.S. 153, 174 (1988). But the
transcript goes still further to demonstrate this point. After
this discussion, the court came to the conclusion that the lack of
additional jurors required a mistrial, and it prepared to place the
case on the docket for another day. Instead of participating in
this plan, counsel again engaged the court on the merits. She
stated, “[w]ell, I think there’s really an argument about—.” J.A.
55. Once again, before she could finish, the court interrupted by
completing her sentence. It stated, “[n]ow she’s going to claim
that jeopardy attaches.” Id. (emphasis added). And once again,
Washington’s counsel confirmed that this was indeed the point she
intended to make, stating, “[w]ell, it did attach because the
jurors were sworn.” Id. (emphasis added). Counsel’s persistence
in re-raising her argument here, at the very moment that the court
hoped that the parties would move on, is simply inconsistent with
the idea that she was not objecting. Moreover, if there were any
remaining doubt as to this fact, the court itself quickly would
30
deliver the coup de grâce. After insisting that jeopardy existed,
Washington’s counsel then offered to look at the transcript to
confirm this point. Recognizing her insistence, the court
acknowledged exactly why Washington’s counsel was remaining so firm
on the issue. It stated, “[n]ow she is going to move to dismiss on
double jeopardy grounds.” Id. (emphasis added). More than
anything else, this admission indicates that the court was vividly
aware that counsel was objecting and of the precise nature of her
objection.
This exchange between the first Virginia trial judge and
Washington’s counsel also belies the Supreme Court of Virginia’s
finding that counsel “participated, without objection,” in the
setting of a new trial date. Although Washington’s counsel
ultimately did confer with the court when it was setting a new
trial date, she did so only after this extended colloquy when she
expressed her objections. Only after the court acknowledged that
she was going to move to dismiss based on the Double Jeopardy
Clause did she offer the brief statement “we can set a date.” J.A.
56. We note in passing that counsel’s statement here does not
unambiguously refer to a date for a new trial. Even if counsel had
been agreeing to set a new trial, however, it is understandable at
that point why she would do so. After Washington’s counsel
expressed her objection to the court, further protest could not
have been useful or appropriate. This fact is particularly true in
31
Virginia, where state procedural rules specifically protect a party
from having to repeat objections that already have been raised.
See Va. Code Ann. § 8.01-384(A) (Michie 2000) (providing that “[n]o
party, after having made an objection or motion known to the court,
shall be required to make such objection or motion again in order
to preserve his right to appeal”). Moreover, directly after this
exchange, the Virginia trial judge promptly made his ruling
indelible by excusing the jury permanently. Because this act
foreclosed any last possibility that Washington still could be
tried by his original jury panel, further objection would have been
totally moot. Thus, any subsequent involvement that Washington’s
counsel may have had in setting a trial date can hardly be
considered evidence of waiver.
Moreover, the record makes it clear that even as the
proceedings drew to a close in the trial, the first Virginia trial
judge was still cognizant that Washington’s counsel was objecting.
First, after excusing the jury and giving its reasons for declaring
a mistrial, the court again acknowledged the significance of the
jury empaneling, stating, “[t]he jury was sworn. It is very
important constitutionally.” J.A. 59. Second, and equally
important, the court acknowledged counsel’s parting request that a
transcript of the day’s proceedings be prepared “fairly quickly.”
J.A. 60–61. This request only could have meant that Washington’s
counsel was not dropping the issue of double jeopardy. Indeed, the
32
only significant action that the Virginia trial judge performed in
that day’s proceedings was the granting of a mistrial. Therefore,
Washington’s counsel only would have needed the transcript for
further argument on this very issue, and no other. For this
reason, the court’s acknowledgment, without further comment, of
counsel’s request is still further evidence that it was aware of
her objection.
Although the preceding evidence already puts the fact that
Washington’s counsel objected beyond reproach, one further point is
warranted. Beyond reviewing the plain meaning of the colloquies in
the first trial, we may infer the meaning from the subsequent
behavior of the parties. On this point as well, the record
irrefutably demonstrates that no one left the original trial with
the impression that Washington’s counsel was consenting to the
mistrial. Indeed, at Washington’s subsequent trial, the second
Virginia trial judge entertained an extensive argument regarding
the mistrial, yet no one there claimed that Washington had
consented or failed to object. At the beginning of the
proceedings, Washington’s counsel raised the issue, stating, “I did
not request a mistrial. Mr. Hudgins did not request a mistrial.
I think this is one of those cases where we would have to describe
it as a su esponte [sic] declaration of a mistrial by the Court.”
J.A. 70. Neither the second Virginia trial judge nor the
Commonwealth contested this claim. Rather, the entire basis of
33
argument before the court was the issue of manifest necessity for
the mistrial. On this point, the second trial judge ultimately
determined that “the whole issue here . . . [was] whether the
[first trial judge] found this manifest necessity.” J.A. 93
(emphasis added). It was not until the issue was appealed in the
Virginia courts that the Commonwealth first made its claim that
Washington had consented to the mistrial by his failure to object
explicitly.
In sum, based on a plain reading of the record and the
subsequent behavior of the parties, the Supreme Court of Virginia’s
factual determination that Washington had failed to object was
unreasonable.
4.
The preceding analysis of the factual record does more than
demonstrate that the Supreme Court of Virginia’s factual
determination was unreasonable. It also satisfies us that this
factual determination, coupled with its unreasonable application of
federal law discussed in Section III.B.2, supra, produced an
unreasonable result. After reviewing the district court’s analysis
de novo, we agree that we must consider the issue of Washington’s
waiver based on the totality of the circumstances and mindful of
the Supreme Court’s directive to “indulge every reasonable
presumption against waiver” of fundamental rights. Aetna Ins. Co.
34
v. Kennedy, 301 U.S. 389, 393 (1942). We also agree that the
factual record unmistakably demonstrates that Washington’s counsel
made her objection known to the court. Applying these facts to the
proper legal standard, we conclude that Washington undoubtedly
asserted his double jeopardy rights, and it would be unreasonable
to determine otherwise.8 Accordingly, the trial court’s
declaration of a mistrial was improper unless there was manifest
necessity for such a declaration. We turn to this final issue now.
C.
In its final claim, Appellant argues that even if Washington
did not waive his double jeopardy rights, the district court erred
in finding that there was no manifest necessity to support an
independent declaration by the trial court of a mistrial.
This last claim is entirely without merit. As discussed in
Section III.B.1, supra, under Supreme Court law, a finding of
“manifest necessity” must be based on the totality of the
circumstances. United States v. Sanford, 429 U.S. 14, 15-16
(1976). This clearly established standard generally requires an
8
This determination is consistent not only with the position
of the district court, but also with that of the Supreme Court of
Virginia’s dissenting opinion. Commonwealth v. Washington, 559
S.E.2d 636, 641–44 (Va. 2002). The dissent would have ruled that
Washington did not consent to mistrial and that, because no
manifest necessity existed, a second trial by the Virginia trial
court was improper. The majority, because its ruling was premised
on a finding of Washington’s consent to mistrial, never considered
the issue of whether manifest necessity existed for the mistrial.
35
investigation of whether less drastic alternatives to mistrial are
available. United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir.
1993). The presence of such alternatives, such as the continuance
of the trial, precludes a finding that manifest necessity exists.
See id. at 1058; United States v. Jorn, 400 U.S. 470, 487 (citing
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)). Here,
the record clearly indicates that the original trial court did not
consider a number of viable alternatives, including continuance,
before making its ruling. Rather, the court stated that there was
only one alternative to declaring a mistrial, which it did not
consider to be viable. “The alternative [to mistrial], facing a
double objection, each with a correct legal basis, was to try the
case and see if it got in and done by 6 o’clock tonight.” J.A. 58.
In failing to consider alternatives other than attempting to
complete the case quickly, the trial court erred.
We find that based on the record, the less drastic alternative
of a continuance would have been available. The record indicates
that one sworn juror was unavailable after 5:30 P.M. on the first
day and another sworn juror was unavailable for the entire second
day. It also indicates that the trial would likely last longer
than 5:30 P.M. on the first day and that an inadequate number of
veniremen existed for the selection of an alternate juror. Based
on these constraints, which are the only ones in the record, the
36
court easily could have postponed the trial until all of the sworn
jurors were available to proceed.
Furthermore, the court had the option of reevaluating whether
it would be proper to excuse the two jurors who claimed to have
conflicting obligations. One of these jurors had “a final class of
a graduate seminar” that evening at 6:00 P.M. J.A. 43–44. There
is no explanation for why the other juror was to be excused for the
following day entirely. J.A. 13. Despite this fact, the first
Virginia trial court did not even consider scrutinizing their
excuses to determine whether it still would be proper to excuse
them based upon the circumstances. While a trial court is always
free to attempt to accommodate jurors and prevent them from
suffering undue hardship as a result of their jury service, Blakey
v. Commonwealth, 29 S.E.2d 863, 865 (Va. 1944), the decision to
excuse jurors is generally a matter of discretion with the court.
See Va. Code Ann. § 8.01-341.2 (Michie 2000) (“The court, on its
own motion, may exempt any person from jury service . . . if
serving on a jury . . . would cause such person a particular
occupational inconvenience.”); Weeks v. Commonwealth, 450 S.E.2d
379, 389 (Va. 1994) (granting deference to the trial court’s
decision of whether to exclude or retain a prospective juror).
Therefore, despite these jurors’ expectations that they would be
excused (apparently based on assurances before the trial), the
first Virginia trial court was free to determine that it was no
37
longer acceptable to excuse them due to the empaneling problem. In
failing to consider at least scrutinizing the jurors’
justifications to determine if they were sufficient, the first
Virginia trial court missed another opportunity to consider a
“viable alternative” to mistrial.
Based on the foregoing, we cannot say that “the trial judge
acted responsibly and deliberately, and accorded careful
consideration to respondent’s interest in having the trial
concluded in a single proceeding.” Arizona v. Washington, 434 U.S.
497, 506 (1978). For this reason, we agree with the district court
that, based on the record, manifest necessity did not exist for the
declaration of a mistrial. Accordingly, Appellant’s final claim
also must fail.
IV.
In light of the foregoing analysis, we find both that
Washington did not consent to the mistrial and that there was no
manifest necessity for the first Virginia trial court independently
to declare a mistrial. Because there was no valid basis for the
first Virginia trial judge’s sua sponte declaration of a mistrial,
Washington was entitled to the fundamental protections attendant
upon the Double Jeopardy Clause. Further, in light of the factual
record, we believe that this conclusion is inescapable. Although
we are mindful not to simply substitute our opinion for that of a
38
state court, we believe that it would be unreasonable for any
court, including the Supreme Court of Virginia, to conclude
otherwise. Such a conclusion would lie “well beyond the boundaries
of permissible differences of opinion.” Hardaway v. Young, 302,
F.3d 757, 762 (7th Cir. 2002), cert. denied, 538 U.S. 979 (2003).
Based on this analysis, we agree with the district court that
habeas relief is proper. Accordingly, we affirm the grant of a
writ of habeas corpus by the district court.
AFFIRMED
39
SHEDD, Circuit Judge, concurring in part and dissenting in part:
The Supreme Court of Virginia found that Washington implicitly
consented to the first state trial court’s declaration of a
mistrial by failing to object to the mistrial, and it therefore
held that his second trial did not violate his right under the
Double Jeopardy Clause of the Fifth Amendment. Commonwealth v.
Washington, 559 S.E.2d 636 (Va. 2002). In affirming the district
court’s grant of a writ of habeas corpus, the majority holds that
the Virginia supreme court’s decision is based on both an
unreasonable application of clearly established federal law, as
determined by the Supreme Court of the United States, and an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.
This is a somewhat unusual case which could have been handled
better by the first trial judge and trial counsel. Moreover, as is
evident from the split opinion of the Virginia supreme court, the
state-court resolution could easily have been in Washington’s
favor. However, our task is to apply the “highly deferential”
standard of review mandated by 28 U.S.C. § 2254(d), “which demands
that state-court decisions be given the benefit of the doubt,” Bell
v. Cone, 125 S. Ct. 847, 853 (2005) (per curiam) (internal
quotation marks omitted), and which authorizes our intervention
into a state criminal proceeding “only when a state-court decision
is objectively unreasonable,” Woodford v. Visciotti, 537 U.S. 19,
40
27 (2002) (per curiam). Viewing the case in this light, I disagree
with both of the majority’s holdings.
In my view, the Virginia supreme court’s application of
federal law is not objectively unreasonable. Compare Washington,
559 S.E.2d at 639-40 (stating that “[t]he various United States
Courts of Appeals have held that a defendant’s consent to a
mistrial is implied when a defendant had an opportunity to object
to a mistrial but failed to do so” and applying this rule) with
United States v. Ham, 58 F.3d 78, 83-84 (4th Cir. 1995) (stating
that “a number of circuits have held that a defendant impliedly
consents to a mistrial if the defendant had an opportunity to
object to the mistrial but fails to do so” and applying this rule).
Although the majority places great reliance on its view that the
Virginia supreme court did not consider the “totality of the
circumstances,” I believe that (to the extent such consideration is
necessary) the majority misreads the Virginia supreme court’s
opinion. A fair reading of that opinion shows that the Virginia
supreme court did, in fact, properly consider the circumstances of
the case. See Washington, 559 S.E.2d at 637-38 (statement of the
operative facts); id. at 639 (noting the state-law requirements for
objecting in Virginia trial courts); id. (noting counsel’s admitted
failure to expressly object and that Washington “does not contend
that he was deprived of an opportunity to make a meaningful
objection”); id. at 640 (comparing counsel’s “clear and unequivocal
41
objections” to other rulings in the case with her lack of such an
objection to the mistrial).
I also believe that the Virginia supreme court’s factual
determinations, which are presumptively correct, see 28 U.S.C. §
2254(e)(1), are not objectively unreasonable. The key factual
issue is not whether Washington’s counsel raised the issue of
double jeopardy while the mistrial was being considered: she
clearly did. Rather, the key issue is whether she objected to the
mistrial -- that is whether she informed the trial judge that
Washington wished to proceed with the trial. She clearly did not.
See, e.g., Ham, 58 F.3d at 84 (“If Swami had wanted the original
jury to decide the Rule 31(e) forfeiture issue, he should have
informed the court of this desire before it dismissed the jury.”).
The importance of this distinction is illustrated by the majority’s
criticism of the trial judge (and its corresponding finding
regarding manifest necessity) for failing to consider alternatives
to the mistrial. Had counsel informed the trial judge that
Washington wanted to proceed with that jury, the trial judge
presumably would have explored other alternatives. However,
counsel did not press the issue of proceeding with the trial, and
the trial judge therefore did not conduct an extended analysis of
alternatives to the mistrial.
42
Because the Virginia supreme court’s decision is not
objectively unreasonable, I would reverse the district court’s
grant of habeas relief.*
*The majority also holds that the composition of this
appellate panel is not unconstitutional and that consideration of
Washington’s double jeopardy claim is not precluded by an adequate
and independent state procedural bar. I concur in these results.
43