NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER DEEDY, No. 20-15816
Petitioner-Appellant, D.C. No.
1:18-cv-00094-DKW-RLP
v.
NOLAN P. ESPINDA, Warden, Director,
Department of Public Safety, State of MEMORANDUM*
Hawaii; et al.,
Respondents-Appellees.
On Appeal from the United States District Court
for the District of Hawai’i
Derrick K. Watson, District Judge, Presiding
Submitted July 8, 2021**
Honolulu, Hawai’i
Before: NGUYEN, OWENS, and FRIEDLAND, Circuit Judges.
Christopher Deedy filed a 28 U.S.C. § 2241 habeas petition seeking to
prevent the State of Hawai’i from retrying him on first- and second-degree assault
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
charges after a jury acquitted him of murder and hung on murder’s lesser included
offenses. We previously held that the Double Jeopardy Clause does not bar retrial
on the assault offenses but remanded to the district court with the instruction that it
“may consider” Deedy’s argument that “the State abandoned its opportunity to
retry the assaults.” Deedy v. Suzuki, 788 F. App’x 549, 551 (9th Cir. 2019), cert.
denied, 141 S. Ct. 133 (2020). The district court considered and rejected this
argument but granted a certificate of appealability on the question of “[w]hether
the Ninth Circuit recognizes a claim of abandonment under the Double Jeopardy
Clause and, if so, whether Deedy has shown that the State abandoned the assault
charges against him.” Deedy v. Connors, No. 18-cv-00094, 2020 WL 1815219, at
*3 (D. Haw. Apr. 9, 2020).
We review the district court’s denial of a § 2241 petition for a writ of habeas
corpus de novo, Wilson v. Belleque, 554 F.3d 816, 828 (9th Cir. 2009), and affirm.
Unless it is the result of prosecutorial misconduct intended to goad the
defendant into moving for a mistrial, Oregon v. Kennedy, 456 U.S. 667, 673–79
(1982), “a mistrial following a hung jury is not an event that terminates the original
jeopardy to which petitioner was subjected,” Richardson v. United States, 468 U.S.
317, 326 (1984); see also United States v. Gooday, 714 F.2d 80, 83 (9th Cir. 1983).
Deedy does not allege any misconduct or goading here.
We need not decide whether prosecutorial abandonment is also a jeopardy-
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terminating event, because the State did not abandon any charges here. Once the
trial court instructed the jury on the assault charges over the State’s objection, the
State reasonably explained to the jury why it believed murder was the appropriate
conviction. Further, because murder and its included offenses have different mens
rea requirements, the State also explained why the facts supported finding that
Deedy had a “knowing and intentional” mens rea and not merely a “reckless” mens
rea. None of the State’s actions evince abandonment. Thus, because the jury hung
and the court declared that Deedy could be retried on the hung charges, Richardson
resolves the question: Deedy may be retried on the charges upon which the jury
hung.
AFFIRMED.
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