Shawn Glover v. Doug Gillespie

FILED
NOT FOR PUBLICATION DEC 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHAWN LYNN GLOVER, No. 11-16593
Petitioner - Appellant, DC No. 2:11 cv-11 JCM
v.
MEMORANDUM *
DOUG GILLESPIE,
Respondent - Appellee,
STEVEN S. OWENS, Chief Deputy DA,
Real-party-in-interest -
Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted December 4, 2012 **
San Francisco, California
Before: D.W. NELSON, TASHIMA, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Petitioner-Appellant Shawn Lynn Glover Jr. appeals the district court’s
denial of his 28 U.S.C. § 2241 habeas corpus petition. The government moves to
dismiss this appeal on the ground that since the district court’s denial of the writ,
Glover has pleaded guilty to the charged offense. Because the facts and procedural
history are familiar to the parties, we do not recite them here, except as necessary
to explain our disposition.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district
court’s denial of a petition for a writ of habeas corpus de novo. DeWeaver v.
Runnels, 556 F.3d 995, 997 (9th Cir. 2009). We review the trial court’s
determination that there was manifest necessity to declare a mistrial for abuse of
discretion. United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008). We
deny the government’s motion to dismiss, and affirm the district court’s denial of
Glover’s petition.
1. Glover’s subsequent guilty plea did not result in a waiver of his
double jeopardy claim. Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam).
Because Glover properly filed this petition under 28 U.S.C. § 2241 in the first
instance, that section continues to apply notwithstanding his subsequent guilty
plea. See Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004) (where petitioner
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“was not ‘in custody pursuant to the judgment of a State court’ at the time he filed
his petition,” § 2241 applied).
2. It appears that the trial judge acted “responsibly and deliberately,” and
was within his discretion to determine that there was manifest necessity for a
mistrial. See Arizona v. Washington, 434 U.S. 497, 516 (1978). Defense counsel
had been admonished not to refer to the contents of the videotape, but proceeded to
do so notwithstanding the admonition. The trial judge heard arguments from both
parties regarding the necessity for a mistrial and concluded that a curative
instruction would be insufficient to cure defense counsel’s improper statement.
See id. at 515-16 (stating that the trial judge is in the best position to assess the
impact of “improper and highly prejudicial” remarks); United States v. Bates, 917
F.2d 388, 395-96 (9th Cir. 1990). We cannot say that the trial judge abused his
discretion in finding a manifest necessity for a mistrial. Accordingly, we find no
double jeopardy violation.
The motion to dismiss is DENIED.
The judgment of the district court is AFFIRMED.
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