543 F.2d 631 (8th Cir. 1976), 76-1157, Nelson v. District Court of State of Iowa In and For Scott County

Docket Nº:76-1157.
Citation:543 F.2d 631
Party Name:Gary Dale NELSON, Appellant, v. DISTRICT COURT OF the STATE OF IOWA IN AND FOR SCOTT COUNTY, Appellee.
Case Date:October 29, 1976
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 631

543 F.2d 631 (8th Cir. 1976)

Gary Dale NELSON, Appellant,

v.

DISTRICT COURT OF the STATE OF IOWA IN AND FOR SCOTT COUNTY, Appellee.

No. 76-1157.

United States Court of Appeals, Eighth Circuit

October 29, 1976

Submitted Oct. 1, 1976.

John J. Carlin and Gary K. Koos, Davenport, Iowa, for appellant.

Richard C. Turner, Atty. Gen., and Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before LAY, ROSS and WEBSTER, Circuit Judges.

Page 632

PER CURIAM.

Gary Dale Nelson appeals from an order of the District Court 1 dismissing his petition for habeas corpus brought pursuant to 28 U.S.C. § 2254. He contends that he has been subjected to double jeopardy because a state trial judge granted a mistrial on its own motion after the jury foreman reported that the jury was irreconcilably deadlocked following 51/2 hours of deliberation.

Nelson was originally tried in Scott County, Iowa on a charge of receiving and aiding in concealing stolen property. Following the mistrial, he was tried again, this time on an amended information charging that he did "receive or aid in concealing" stolen property. (Emphasis added.) He was convicted, and upon appeal, his conviction was reversed on other grounds and remanded for a new trial. The Iowa Supreme Court, however, rejected his double jeopardy claim. State v. Nelson, 234 N.W.2d 368 (Iowa 1975). He then raised his double jeopardy claim in the District Court, which rejected it, holding that the state trial court had not abused its discretion in granting a mistrial.

The inability of a jury to reach a verdict following a reasonable opportunity to deliberate may make retrial a manifest necessity. If so, the second trial does not offend the constitutional prohibition of double jeopardy. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 36 L.Ed. 429 (1892); Dreyer v. Illinois, 187 U.S. 71, 86, 23 S.Ct. 28, 47 L.Ed. 79 (1902). See Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). The decision to declare a mistrial under such circumstances rests in the broad discretion of the District Court. See, e. g., Illinois v. Somerville, 410 U.S. 458, 461-62, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Parker v. United States, 507 F.2d 587, 589 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1576, 43 L.Ed.2d 782...

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