United States Court of Appeals
For the First Circuit
No. 02-1244
DONALD N. CREIGHTON,
Petitioner, Appellant,
v.
TIMOTHY HALL, SUPERINTENDENT OF MCI NORFOLK;
THOMAS REILLY, ATTORNEY GENERAL OF MASSACHUSETTS,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Circuit Judge,
B. Fletcher,* Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Greg T. Schubert for appellant.
James J. Arguin, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for appellees.
November 6, 2002
____________________
*Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
STAHL, Senior Circuit Judge. This is an appeal from an
order of the United States District Court for the District of
Massachusetts, entered on February 13, 2002, denying Donald
Creighton's petition for habeas relief under 28 U.S.C. § 2254.
After a Massachusetts Superior Court judge declared a mistrial,
Creighton was retried by a newly impaneled jury and convicted of
rape, kidnapping, and assault and battery. He asserts that the
second trial and the resulting convictions violated his federal
constitutional right against double jeopardy. Both the state
Superior and Appellate Courts held that the second trial and
ultimate convictions were not barred by the double jeopardy clause.
Applying the highly deferential standard of review prescribed by
AEDPA, we affirm.
I
On October 15, 1992, a grand jury indicted Creighton for
rape, kidnapping, and assault and battery. Creighton's jury trial
began on January 27, 1993. On direct examination, the victim
testified that Creighton held her against her will in his
apartment, beat her with his fists, slapped her repeatedly, and
then raped her. On cross-examination, after the victim denied
being under the influence of any substance on the day in question,
the court sustained an objection to defense counsel's question
regarding the last time she had been under the influence of a
substance. The victim also testified that the medical examination
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performed on her the night of her alleged rape indicated that the
physician had found no bruises.
Creighton testified in his own defense. On direct
examination, he testified that he and the victim had engaged in
consensual intercourse, after which she demanded $300. He denied
ever holding the victim against her will or abusing her in any way.
He also testified that after he refused to pay her, she threatened
to accuse him of rape and to return with a male friend presumably
to obtain the money. Approximately twenty minutes after the victim
departed, Creighton left his apartment.
On cross-examination, after the prosecutor asked
Creighton about why he left his apartment after the incident, the
following exchange occurred:
Prosecutor: Were you afraid these people were going to come
back and get you, is that why you left?
Creighton: I had mixed feelings. You know, I felt very much
-- I felt that I was in the dark. You know, I
felt that I was deceived.
Prosecutor: Yes?
Creighton: You know I didn't know what her motives were.
Prosecutor: Sure?
Creighton: I didn't know, at this time, that she used drugs.
She shot heroin and stuff.1
Prosecutor: You didn't know that, no?
Creighton: No.
The prosecutor returned to her initial question of
whether Creighton had left because he was afraid of something.
1
At the probable cause hearing, the victim acknowledged using
heroin roughly three times a week but denied using heroin on the
day of the alleged incident.
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After Creighton's response, the court sua sponte provided the
following curative instruction: "Let me just tell the Jury, on that
reference, to the use of drugs. There's absolutely no evidence
that the alleged victim in this case, used or uses drugs, and you
are to disregard that, and you're not to mention that in your
deliberations. Go ahead."
The following colloquy then occurred:
Prosecutor: Thank you.
Creighton: There's testimony --
The Court: Hold on. Wait a minute, Mr. Creighton.
Creighton: -- there's testimony of probable cause --
The Court: Mr. Creighton, stop it. Stop it!
Creighton: -- that she used drugs.
The Court: Okay. Bring him out right now and the jury may
be excused.
Creighton: You just don't want the jury to know --
The Court: Mistrial.
Creighton: -- like she was.
The transcript quoted above fails to fully depict what
occurred in the courtroom. An audiotape of the proceedings, which
is part of the record, reveals that as Creighton continued to speak
over the court's instructions not to do so, the trial judge's voice
became progressively louder, and, at one point, she banged her fist
on the bench. Her last "Stop it" was considerably louder than her
previous declarations and voiced in a high-pitched, excited tone.
After ordering the mistrial and as she headed for
chambers, she held Creighton in contempt of court. Two minutes
after departing the courtroom, the judge returned and, in
Creighton's but not the jury's presence, stated: "Okay, I said the
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word mistrial, but I don't think the Jury knows what I meant by
that. I'd just as soon continue with this case and with this Jury,
unless there's an objection and somebody moves for a mistrial."
After conferring with Creighton, defense counsel moved for a
mistrial, explaining that although he "underst[ood] that [the
declaration of mistrial] was as the result of the conduct of [his]
client," he believed that the declaration coupled with Creighton
being held in contempt of court in front of the jury prejudiced the
jury against Creighton and no instruction would remove that
prejudice. The trial judge agreed and granted Creighton's request
for a mistrial and admonished Creighton not to let it happen again.
Creighton attempted to respond, but this time he heeded her
directive to stop. She then called back the jury and discharged
them from the case.
The following Monday, Creighton moved to dismiss the
indictments against him on the ground that a retrial would be
barred by the double jeopardy clause, and moved to recuse the judge
from presiding over the second trial. The court denied both
motions.
Seeking review of his motion to dismiss, Creighton moved
to stay the second trial and filed a petition, under Mass. Gen. Law
ch. 211, § 3, along with the audiotape of the relevant portion of
the trial proceedings, to the single justice of the Massachusetts
Supreme Judicial Court ("SJC"). After a hearing, the single
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justice denied the petition. No appeal was taken to the full
court. Commonwealth v. Creighton, 666 N.E.2d 1298, 1298 (Mass.
1996).
Creighton was subsequently retried by a newly impaneled
jury, with the same Superior Court judge presiding, and convicted
of rape, kidnapping, and assault and battery.
II
A. Reconsideration of First Petition to Dismiss
On June 16, 1995, Creighton filed a second petition to
the single justice of the SJC, seeking reconsideration of the
denial of his first petition. The single justice again denied
relief. The SJC affirmed that decision on the procedural ground
that Creighton had failed to appeal the denial of his initial
petition. In January 1997, Creighton filed a motion for release
from illegal incarceration, pursuant to Mass. Crim. Pro. R. 30[a],
arguing that the second trial was barred by double jeopardy. After
a hearing the Superior Court denied this motion.
B. Direct Appeal
Creighton appealed his convictions and the Superior
Court's denial of his motion for release from illegal incarceration
to the Massachusetts Appeals Court. The Appeals Court affirmed the
underlying convictions and the denial of his motion for a new
trial. See Commonwealth v. Creighton, No. 96-P-1898 (Mass. App.
Ct. Aug. 6, 1998) (unpublished opinion). It held that the manifest
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necessity test did not apply in these circumstances because
although the trial judge first said "mistrial," Creighton
effectively "pulled the plug" on the first trial by requesting the
mistrial. Id. at 1-2.2 The court rejected Creighton's claim that
the manifest necessity test should apply because he had no
opportunity to consent to the trial court's sua sponte declaration
of mistrial before she "'rushed from the bench,'" reasoning that
the trial judge was entitled to "cool off," and, in any case, the
judge returned and gave Creighton a full opportunity to be heard.
Id. at 2-3. Finally, finding that the trial judge's "conduct did
not evidence any bad faith," the court rejected Creighton's
contention that the record demonstrated that the trial judge had
"'lied'" to the jury or acted in such a way as to bar a retrial.
Id. at 1 (citing United States v. Dinitz, 424 U.S. 600, 611
2
The court explained:
When the judge returned to the bench--having
stifled [Creighton]'s attempt inappropriately
to sully the victim's reputation--her
inclination to continue the trial with the
same jury was ill-advised. However, although
it was the judge who first uttered the word
"mistrial," it was defense counsel who pulled
the plug and urged the declaration of a
mistrial. In these circumstances, we need not
apply the manifest necessity test. Where the
defendant originates the request for a
mistrial or expresses agreement with the idea,
ordinarily double jeopardy will not prevent a
retrial.
Id. at 2 (citations omitted).
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(1976)). Finally, the Appeals Court rejected Creighton's challenge
to the trial judge's sua sponte instruction to the jury regarding
the victim's alleged drug use, explaining that these "inappropriate
remarks were made on cross-examination and that his answers
contained information which the judge considered both nonresponsive
and inadmissible." Id. at 3 (citations omitted). His application
for further appellate review to the SJC was denied on October 27,
1998.
C. District Court's Memorandum of Decision
After exhausting his state remedies, Creighton timely
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, asserting that his convictions after the second trial
violated his federal constitutional right against double jeopardy.
Creighton v. Hall, No. Civ.A. 99-12215, 2002 WL 745843 (D. Mass.
February 12, 2002). In dismissing the petition, the district court
held that the state court's denial of Creighton's double jeopardy
claim was not contrary to, or a result of an unreasonable
application of, clearly established Supreme Court precedent. The
court agreed that Creighton had "pulled the plug" on the first
trial by requesting the mistrial and, thus, the manifest necessity
test did not apply. The court also held that Creighton had failed
to rebut by clear and convincing evidence the state court's factual
determination that the trial judge's conduct did not evidence bad
faith.
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Creighton filed a timely notice of appeal on February 26,
2002.
III
We review the federal district court's denial of a writ
of habeas corpus de novo. See Almanzar v. Maloney, 281 F.3d 300,
303 (1st Cir. 2002).
The Anti-terrorism and Effective Death Penalty Act
("AEDPA") significantly limits the scope of federal habeas review.
AEDPA precludes the granting of habeas relief to a state prisoner,
unless the state court decision was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1). A decision is "contrary to" federal law if the state
court applies a legal principle different from the governing
principal set forth in Supreme Court cases, or if the state court
decides the case differently from a Supreme Court case on
materially indistinguishable facts. Bell v. Cone, 122 S.Ct. 1843,
1850, ___ U.S. ___ (2002) (citing Williams v. Taylor, 529 U.S.
362, 405 (2000)).
To hold that a state court's decision is an "unreasonable
application" of clearly established federal law, the federal habeas
court must find that "the state court correctly identifie[d] the
governing legal principle from [Supreme Court] decisions but
unreasonably applie[d] it to the facts of the particular case."
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Bell, 122 S.Ct. at 1850. In making this determination, a federal
habeas court "should ask whether the state court's application of
clearly established federal law was objectively unreasonable."
Williams, 529 U.S. at 409. We are mindful that in order to grant
habeas relief the state court decision must be objectively
unreasonable as opposed to merely incorrect. Williams, 529 U.S. at
411 ("A federal habeas court may not issue the writ simply because
the court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable."). Finally, our focus "is not how well reasoned the
state court decision is, but whether the outcome is reasonable."
Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001), cert. denied,
122 S.Ct. 282 (2001).
AEDPA also provides habeas relief when the state court
decision was based on "an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d)(2). However, the federal habeas court shall
presume that the state court's determination of factual issues is
correct and petitioner has "the burden of rebutting the presumption
of correctness by clear and convincing evidence." Id. §
2254(e)(1).
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IV
With this framework in mind, we turn now to Creighton's
claims. Creighton maintains that the Double Jeopardy Clause barred
his retrial because the court declared the mistrial sua sponte
absent manifest necessity and, alternatively, the trial judge's
conduct was intended to provoke Creighton to request a mistrial.
A. Clearly Established Federal Law
The Double Jeopardy Clause of the Fifth Amendment
protects a criminal defendant against "repeated prosecutions for
the same offense" and affords the defendant the right "'to have his
trial completed by a particular tribunal.'" United States v.
Dinitz, 424 U.S. 600, 606 (1976) (quoting Wade v. Hunter, 336 U.S.
684, 689 (1949)); see also Oregon v. Kennedy, 456 U.S. 667, 671
(1982). The Supreme Court has directly addressed the double
jeopardy implications of a trial court's sua sponte declaration of
a mistrial. If a judge declares a mistrial over the objection of
the defendant, a retrial will be barred unless the mistrial was
justified by manifest necessity. Kennedy, 456 U.S. at 672; Dinitz,
424 U.S. at 606-607. If, on the other hand, a defendant requests
or consents to a mistrial, the "manifest necessity" standard does
not apply and the Double Jeopardy Clause ordinarily will not bar
retrial, even when the request or consent to a mistrial is in
response to prosecutorial or judicial error. Kennedy, 456 U.S. at
672-73; Dinitz, 424 U.S. at 607-10. The Supreme Court, in Dinitz,
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made clear that "[t]he important consideration, for purposes of the
Double Jeopardy Clause, is that the defendant retain primary
control over the course to be followed in the event of such
[judicial or prosecutorial] error." 424 U.S. at 609. However, the
Supreme Court has recognized a narrow exception to this rule: A
retrial will be barred where the defendant's request or consent to
a mistrial is necessitated by judicial or prosecutorial conduct
"intended to provoke the defendant into moving for a mistrial."
Kennedy, 456 U.S. at 679.
With these principles in mind, we look to the state
court's decision and ask whether the decision was contrary to, or
an objectively unreasonable application of, the above-mentioned
Supreme Court precedents.
B. Contrary To Clearly Established Federal Law
We can easily dispose of the "contrary to" prong as we
find that the Appeals Court correctly identified the legal
principles set forth in Dinitz and its progeny as governing the
merits of Creighton's double jeopardy claim. Although the Appeals
Court relied heavily on state court decisions, those decisions
relied directly upon Supreme Court precedent, including Dinitz, for
the legal principles outlined above. See, e.g., Commonwealth v.
Andrews, 530 N.E.2d 1222, 1225-26 (1988) (citing Dinitz, 424 U.S.
600); Jones v. Commonwealth, 397 N.E.2d 1187, 1192 (1979) (rev'd on
other grounds, 400 N.E.2d 242 (Mass. 1980)). Moreover, the Appeals
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Court itself cited to Dinitz in the portion of its opinion
addressing the applicability of the bad faith exception. Finally,
we have found no Supreme Court case with facts "materially
indistinguishable" from those in the case before us. We hold,
therefore, that the state court's decision was not "contrary to"
clearly established federal law.
C. Unreasonable Application of Clearly Established Federal
Law
We also conclude that the state court's decision did not
result from an objectively unreasonable application of clearly
established Supreme Court precedent.3 We reiterate that the key
issue for double jeopardy purposes "is that the defendant retain
primary control over the course to be followed in the event of"
judicial error that necessitates a mistrial. Dinitz, 424 U.S. at
609. Here, two minutes after sua sponte declaring a mistrial and
leaving the courtroom, but before discharging the jury, the trial
judge returned to the courtroom and stated her desire to continue
with the first trial unless either party objected to continuing or
requested a mistrial. After conferring with his client,
Creighton's trial counsel availed himself of this opportunity and
requested a mistrial. Thus for double jeopardy purposes, Creighton
3
Although it appears that the Appeals Court might have held,
in the alternative, that there was manifest necessity to declare a
mistrial, we need not reach that question because we find that the
state court reasonably concluded that Creighton requested the
mistrial and found that the trial judge's conduct did not evidence
bad faith.
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had a choice "over the course to be followed" in his prosecution.
He could either have taken his chances with the first trial, the
possibility of a reversal on appeal if convicted, and a subsequent
retrial, or he could, as he did, have ended the first trial. The
choice was his to make. Because the trial judge returned to the
bench and provided Creighton with an opportunity to be heard before
the jury was discharged, we cannot say that the Appeals Court
decision resulted from an objectively unreasonable application of
Dinitz and its progeny.
In response, Creighton raises two arguments, neither of
which we find persuasive. First he argues that because he had no
meaningful opportunity to object or consent to a mistrial before
the trial judge "rushed from the bench," the Appeals Court
unreasonably held that the manifest necessity test did not apply.
According to Creighton, the mistrial was a fait accompli the moment
the trial judge left the courtroom and, accordingly, his request
for a mistrial after she returned is without legal significance.
We disagree. Not only does Creighton fail to cite to any
Supreme Court cases, and we have found none, supporting this
proposition, he also fails to explain why the trial judge's
departure is dispositive. Insofar as he contends that the court's
utterance is somehow talismanic or that the court lacks
jurisdiction or discretion to reconsider her order of mistrial once
she left the courtroom, existing federal case law supports the
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opposite conclusion.4 See, e.g., United States v. Segura-Gallegos,
41 F.3d 1266, 1271 (9th Cir. 1994) (holding that no error occurred
where the trial court reconsidered and reversed its order of
mistrial because "[u]ntil the jury is excused, the court may
reconsider its intention to declare a mistrial") (citing United
States v. Smith 621 F.2d 350, 352 n.2 (9th Cir. 1980), cert.
denied, 449 U.S. 1087 (1981)); Cambden v. Circuit Ct. of 2nd
Judicial Cir., 892 F.2d 610, 617 n.7 (7th Cir. 1989) ("While the
mistrial declaration alone was not a talismanic utterance, the
discharge and dispersal of the jury rendered the mistrial a fait
accompli."), cert. denied, 495 U.S. 921 (1990)); c.f. United States
v. DiPietro, 936 F.2d 6, 11 (1st Cir. 1991) (in holding that mere
silence constitutes tacit consent to a mistrial where the defendant
failed to object to a sua sponte declaration of mistrial, the court
explained that, even though the jury had been dismissed when the
mistrial was declared, "the court could have asked the jury to
remain while reconsidering its decision."). The federal cases
relied upon by Creighton do not hold otherwise and are all
factually distinguishable as the defendants in those cases were not
4
Although the "Supreme Court has made clear . . . that AEDPA
precludes federal courts from disturbing state court judgments by
relying on precedents created by federal courts of appeals,"
Almanzar, 281 F.3d at 304 n.3, reference to factually similar cases
from inferior federal courts is appropriate in assessing the
reasonableness of a state court's application "when the relevant
Supreme Court rule is broad and applies to a kaleidoscopic array of
fact patterns." Rashad v. Walsh, 300 F.3d 27, 35 (2002).
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provided with an opportunity to object or consent to a mistrial.
Lovinger, 845 F.2d 739; Brady v. Samah, 667 F.2d 224 (1st Cir.
1981). Given that the trial judge had not discharged the jury and
that she returned and provided Creighton with an opportunity to
request a mistrial, we do not see how the fact that the trial judge
left the courtroom for a short recess affects the issue here:
Whether Creighton "retained primary control over the course to be
followed" in his case. In any case, we cannot say that it was an
objectively unreasonable application of Dinitz and its progeny for
the Appeals Court to conclude that the trial judge could take a
recess to "cool off" and return, at which time she could reconsider
her motion and provide defendant with an opportunity to be heard.
In the alternative, Creighton secondly contends that he
did not voluntarily request a mistrial because the trial judge's
conduct forced him to a "Hobson's choice," and, therefore, his
request for a mistrial has no legal significance. This very
argument was raised and rejected in Dinitz and thus we find that
Creighton's argument is without merit. 424 U.S. at 609-10.
In sum, the Appeals Court reasonably concluded that
because Creighton had an opportunity to request a mistrial and did
so, the manifest necessity test did not apply and retrial was not
barred absent a finding of judicial conduct intended to provoke
Creighton into requesting a mistrial.
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D. Unreasonable Determination of the Facts
Finally, Creighton challenges the Appeals Court's factual
determination that the trial judge's conduct did not evidence bad
faith. We reiterate that Creighton must clear a high hurdle before
we will set aside the Appeals Court's factual determination: He
must rebut the presumption of correctness of the Appeals Court's
factual determination by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). After reviewing the record thoroughly and
listening to the audiotape, the most that we can say is that the
trial judge became excited only after Creighton failed to stop
speaking over the court's repeated instructions not to do so.
Even were we to accept Creighton's view that the court's
instruction to the jury to disregard his testimony regarding the
victim's alleged drug use was improper, which we doubt, it is pure
speculation that the court gave the instruction with the intent to
provoke the mistrial. Creighton contends that throughout the
trial, the trial court had aligned itself with the prosecution to
convict him. He claimed this was evidenced by the court's
prejudiced evidentiary rulings and its attack on his credibility
through its sua sponte jury instruction, all brought about by the
court's realization that the Commonwealth would lose its case due
to the victim's inconsistent testimony. There is no support for
this in the record; in fact, the opposite appears to be true. To
support his theory, Creighton claims that the trial court deprived
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him of the use of the victim's medical examination, which would
have shown that he did not ejaculate during intercourse and that he
did not beat or slap her. However, Creighton himself testified
that he did, in fact, ejaculate during intercourse with the victim,
and the victim herself testified that her medical examination
indicated that no bruises were found. Even more damning,
Creighton's defense counsel rejected the Commonwealth's offer to
admit the victim's medical examination. And when asked by the
court whether he planned on introducing the victim's medical
examination, the defense counsel said "no."
Moreover, Creighton's allegations of judicial bias are
belied by the court's numerous evidentiary rulings made in his
favor over the Commonwealth's objections. For example, on the
morning of the mistrial, the court ruled, over the Commonwealth's
repeated objections, that defense counsel would be permitted to
call Dr. DeFazio, the doctor who examined the victim after the
alleged rape, to testify regarding the results of the Johnson Rape
Kit and to impeach the victim's testimony that she did not have
intercourse that day. The court also ruled that the victim could
be recalled to the stand to be impeached with her prior
prostitution charge. In addition, the record reflects that the
judge had permitted defense counsel, on cross examination, to
impeach the victim's credibility with a number of her prior
convictions.
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In sum, Creighton has pointed to no evidence in the
record that compels us to conclude that the trial judge acted in
bad faith with intent to provoke him to request a mistrial.
V
We are not without concern about the circumstances of
this case. Creighton had little choice but to request a mistrial
after his sparring match with the court that took place in front of
the jury. However, under 28 U.S.C. § 2254, it is immaterial
whether we would have, in the first instance, decided the case
differently. See Williams, 529 U.S. at 411. We only need to
conclude, as we do, that the Appeals Court applied the principles
identified in Dinitz to the facts of this case in an objectively
reasonable manner. Finding that the state court decision was not
contrary to, or an unreasonable application of, clearly established
Supreme Court precedent, we affirm.
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