FILED
NOT FOR PUBLICATION FEB 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH CARL STANLEY, No. 13-56172
Petitioner - Appellant, D.C. No. 2:12-cv-09569-JAK-SH
v.
MEMORANDUM*
LEROY D. BACA, Sheriff,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted February 4, 2014
Pasadena, California
Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.
Joseph Carl Stanley appeals a district court order dismissing his pretrial
petition for a writ of habeas corpus, in which he asserted a double jeopardy claim.
The district court dismissed Stanley’s petition under the abstention doctrine of
Younger v. Harris, 401 U.S. 37 (1971). We have jurisdiction pursuant to 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1291 and § 2253(c). We vacate the district court order dismissing
Stanley’s habeas petition, and we remand for consideration of that petition on the
merits.1
Though the Younger abstention doctrine generally counsels federal courts to
abstain from adjudicating challenges to criminal prosecutions pending in state
courts, “federal courts will entertain pretrial habeas petitions that raise a colorable
claim of double jeopardy.” Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.
1992). “A double jeopardy claim is colorable if it has ‘some possible validity.’”
United States v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005) (quoting United States
v. Price, 314 F.3d 417, 420 (9th Cir. 2002)). Thus, if Stanley’s double jeopardy
claim has some possible validity, the district court erred in dismissing that claim
under Younger abstention.
Stanley’s double jeopardy claim has some possible validity. “It is long
established that ‘[c]riminal defendants have a right to have the jury first empaneled
to try them reach a verdict.’” United States v. Bonas, 344 F.3d 945, 947-48 (9th
Cir. 2003) (alteration in original) (quoting United States v. Bates, 917 F.2d 388,
392 (9th Cir. 1990)). At Stanley’s first trial, twelve jurors and four alternates had
1
Pretrial habeas petitions are governed by 28 U.S.C. § 2241 rather than
§ 2254. See Stow v. Murashige, 389 F.3d 880, 882 (9th Cir. 2004).
2
already been empaneled and sworn when the state trial court declared a mistrial.
Thus, the Double Jeopardy Clause barred Stanley’s retrial unless the state trial
court’s declaration of mistrial was supported by manifest necessity or the
defendant’s consent, either express or implied. See United States v. You, 382 F.3d
958, 964 (9th Cir. 2004).2 Mistrial was not supported by manifest necessity or
express consent, and on the present record we are unable to determine whether
mistrial was supported by implied consent.
Mistrial was not supported by manifest necessity. “Once the jury is
empaneled and sworn . . . . even severe hardship may not be sufficient to justify
excusing an empaneled juror, particularly if doing so will result in a mistrial.”
Bonas, 344 F.3d at 950. “The defendant’s right to proceed to verdict with the jury
first selected can only be set aside if the [trial] judge reasonably concludes that the
hardship is so severe that it fatally undermines the juror’s ability to discharge his
responsibilities diligently and impartially.” Id. In this case, there is no evidence
that the state trial court concluded that jurors’ asserted hardships had fatally
undermined their ability to discharge their responsibilities diligently and
impartially. No such conclusion would have been reasonable. On the contrary,
2
Despite Respondent’s contrary suggestion at oral argument, manifest
necessity and consent are two separate and independent inquiries. See, e.g., Bates,
917 F.2d at 392.
3
even if the state trial court was justified in excusing four jurors, that court was still
left with twelve jurors sworn to serve diligently and impartially, who were ready to
proceed to trial on November 9, 2011—just two days later.
Because mistrial was unsupported by manifest necessity, and because there
is no indication that Stanley expressly consented to a mistrial, the Double Jeopardy
Clause barred Stanley’s retrial unless mistrial was supported by implied consent.
On the present record, we are unable to determine whether mistrial was supported
by implied consent. For example, it is unclear how much time passed between the
dismissal of the jury and the declaration of mistrial, whether the jury could have
been recalled had an objection been lodged immediately upon declaration of
mistrial, and whether defense counsel heard the state trial court refer to an
agreement that trial would not go forward without at least one alternate juror. On
remand, the district court should determine whether “the circumstances positively
indicate [Stanley’s] willingness to acquiesce in the mistrial order.” Weston v.
Kernan, 50 F.3d 633, 637 (9th Cir. 1995) (citation and internal quotation marks
omitted).
We VACATE the district court order dismissing Stanley’s habeas petition,
and REMAND for the district court to determine, after a hearing, whether mistrial
was supported by implied consent. Each party shall bear its own costs on appeal.
4
VACATED and REMANDED.
5