Fenstermaker v. Halvorson, 17-3378

• Decision Date: 03 April 2019
• Docket Number: No. 17-3378,17-3378
• Citation: 920 F.3d 536
• Parties: Russell J. FENSTERMAKER Petitioner - Appellant v. Kathy HALVORSON, Warden, MCF-Faribault Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

920 F.3d 536

Russell J. FENSTERMAKER Petitioner - Appellant

v.Kathy HALVORSON, Warden, MCF-Faribault Respondent - Appellee

No. 17-3378

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2018

Filed: April 3, 2019

Counsel who represented the appellant was Roy George Spurbeck of Saint Paul, MN.

Counsel who represented the appellee was Jennifer Diane Plante of Rochester, MN.

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

SMITH, Chief Judge.

Russell J. Fenstermaker was tried and convicted in Minnesota state court in January 2013. A couple of months earlier, a jury had been impaneled in the prosecution of the same charge against him, but the state trial court declared a mistrial before the trial actually began. The court found that a mistrial was a manifest necessity because an injury sustained by the prosecutor litigating the case appeared certain to delay the trial beyond the empaneled jury's term of service. Following his convictions, Fenstermaker appealed, challenging the trial court's denial of his motion to dismiss on double jeopardy grounds. The Minnesota Court of Appeals recognized that Fenstermaker's double jeopardy issue presented a "close case," but it ultimately concluded that the trial court did not abuse its discretion by declaring a mistrial out of manifest necessity. State v. Fenstermaker , No. A13-1082, 2014 WL 4290318, at *6 (Minn. Ct. App. Sept. 2, 2014). Fenstermaker petitioned the district court¹ for a writ of habeas corpus. The district court denied the petition, concluding the state court did not unreasonably apply clearly established federal law. Fenstermaker now asks this court to reverse the judgment of the district court and grant the writ. We decline to do so and affirm.

I. Background

The State of Minnesota charged Fenstermaker with first-degree and third-degree sexual assault. His trial was scheduled for Wednesday, November 14, 2012. On that day, a jury was selected and sworn in. Opening arguments were scheduled to start Friday, November 16. On Thursday, November 15, the State requested a continuance until Monday, November 19, because the assigned prosecutor had suffered a back injury and could not proceed with the trial as scheduled. The court granted the continuance.

On Sunday, November 18, a supervising prosecutor notified the court that the assigned prosecutor was still at home, unable to walk, and on medication. The supervising attorney appeared in court on Monday. He reiterated the injured attorney's unavailability and also stated that no other prosecutor in the office had time to prepare for the trial. He emphasized that the assigned prosecutor's relationship with the witnesses and jury were critical to the case proceeding fairly. The State then moved for a mistrial.

The State said it was willing to discuss other options, such as continuing the trial to the following week, as long as the assigned prosecutor could return by then. Fenstermaker's counsel opposed the motion for mistrial but said he was available the following week for a trial. The court then said it would make time for trial the following week, but only if a trial could be certain to begin. Upon reflection, however, the court granted the State's motion for mistrial. The court based its decision on the sudden and severe nature of the prosecutor's injury and the uncertainty of her availability the following week. The court also considered that the injury's occurrence on the eve of trial made it "virtually impossible" for another prosecutor to substitute. Resp. to Pet. for Writ of Habeas Corpus, Addendum Tr. Nov. 19, 2012, at 8, Fenstermaker v. Halvorson , No. 16-CV-0363 (D. Minn. Mar. 23, 2016), ECF No. 10-2. The trial court, noting it had been prepared to declare a mistrial sua sponte in light of the circumstances, expressed concern about the possible expiration of the jury's term of service before the case could finish.

Trial was rescheduled and held about two months later with the original prosecutor on January 22, 2013. At trial, Fenstermaker moved to dismiss, arguing that the trial would violate his constitutional right not to be subject to double jeopardy. The court denied the motion. The jury convicted Fenstermaker of the charged crime. On appeal before the Minnesota Court of Appeals, Fenstermaker argued that the trial court abused its discretion because there was no manifest necessity justifying the mistrial. The appeals court disagreed, but it noted that the double jeopardy issue presented a "close case." Fenstermaker , 2014 WL 4290318 at *6. Fenstermaker then sought and was denied review by the Minnesota Supreme Court.

After he exhausted his state court appellate opportunities, Fenstermaker filed a petition for writ of habeas corpus with the district court, arguing that the Minnesota Court of Appeals erred in rejecting his double jeopardy claim. The magistrate judge recommended that the district court deny Fenstermaker's petition. The district court adopted the magistrate judge's report and recommendation, concluding that the Minnesota courts did not unreasonably apply clearly established federal law. Specifically, the district court stated:

[T]he magistrate judge was correct to find that it was not manifestly unreasonable to conclude that a continuance was an inviable option, given the short time remaining in the jury's term of service, and the complete uncertainty regarding when, if ever, the prosecutor would be available to return to the courtroom.

Fenstermaker v. Halvorson , No. 16-CV-363, 2017 WL 3608234, at *4 (D. Minn. Aug. 22, 2017). Finally, the district court granted Fenstermaker a certificate of appealability because "reasonable jurists could debate the outcome of th[e] petition." Id . at *5.

II. Discussion

Fenstermaker is entitled to habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) if he can show that the Minnesota Court of Appeals' decision was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). Fenstermaker does not argue that the Minnesota Court of Appeals made a decision contrary to clearly established federal law.² His argument is that Minnesota's application of that law was unreasonable. The question we must answer then, is whether the Minnesota Court of Appeals' determination that the trial court did not abuse its discretion in granting a mistrial based on manifest necessity was an unreasonable application of clearly established federal law.

Our review of state court rulings under AEDPA is "highly deferential." Lindh v. Murphy , 521 U.S. 320, 333 n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). We will not grant a writ of habeas corpus simply because we independently conclude "that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor , 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Instead, Fenstermaker must show that the Minnesota court's mistrial order in his first trial was "objectively unreasonable." Id. at 409, 120 S.Ct. 1495. "This distinction creates a substantially higher threshold for obtaining relief than de novo review." Renico v. Lett , 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (internal quotation omitted). In other words, we must give the Minnesota Court of Appeals the benefit of the doubt unless Fenstermaker makes a showing that its ruling "was so lacking in justification that there [is] an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter , 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). We presume "state courts know and follow the law." Woodford v. Visciotti , 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).

A. Double Jeopardy Implications of Mistrial Ruling

The "principles of federal law governing [double jeopardy cases] are well established. Under the Fifth and Fourteenth Amendments, a state may not twice place a defendant in jeopardy for the same offense." Moussa Gouleed v. Wengler , 589 F.3d 976, 981 (8th Cir. 2009). Constitutional protections against retrial attach when a jury is empaneled and sworn, even before opening statements are made. See, e.g. , Martinez v. Illinois , 572 U.S. 833, 834, 134 S.Ct. 2070, 188 L.Ed.2d 1112 (2014) (per curiam). Fenstermaker's constitutional protections, barring an appropriate mistrial, had kicked in because jeopardy attached when the first jury was empaneled. But "retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused." Arizona v. Washington , 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Mistrial may be declared "whenever, in [the trial judge's] opinion, taking all the circumstances into consideration, there is a manifest necessity" for the mistrial. United States v. Perez , 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

The manifest necessity standard has been interpreted over time to mean a "high degree of necessity," not an absolute necessity. Renico , 559 U.S. at 774, 130 S.Ct. 1855 (internal quotation omitted). The decision to grant a mistrial is reserved to the "broad discretion" of the trial judge handling individual cases.

Illinois v. Somerville , 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). While there is no "mechanical formula" a reviewing court should use, see id. , we are particularly concerned with "whether less drastic alternatives were available" to the trial court than declaring a mistrial. Long v. Humphrey , 184 F.3d 758, 761 (8th Cir. 1999) (internal quotation omitted).

B. Minnesota's Application of Federal Law

We have previously set forth when a state court's adjudication of a claim involves an unreasonable application of clearly established federal law:

A decision involves an unreasonable application of federal law if the state

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