Flint v. Carr

• Decision Date: 19 August 2021
• Docket Number: No. 20-3165,20-3165
• Parties: Antwon FLINT, Petitioner-Appellant, v. Kevin CARR, Secretary of the Wisconsin Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

10 F.4th 786

Antwon FLINT, Petitioner-Appellant,

v.Kevin CARR, Secretary of the Wisconsin Department of Corrections, Respondent-Appellee.

No. 20-3165

United States Court of Appeals, Seventh Circuit.

Argued April 22, 2021

Decided August 19, 2021

Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, Anderson M. Gansner, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Petitioner-Appellant.

Scott Rosenow, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Wood, Brennan, and St. Eve, Circuit Judges.

Brennan, Circuit Judge.

The Double Jeopardy Clause of the Fifth Amendment provides that "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." This constitutional protection prohibits retrial after an acquittal, but a mistrial declared over a defendant's objection does not always prevent another prosecution. A "manifest necessity" for the mistrial allows a retrial for the same crime.

That is what happened to Antwon Flint. In his first trial in Wisconsin state court, the prosecutor moved for a mistrial based on (alleged) hearsay in Flint's counsel's opening statement. The trial court granted that motion, and a jury found Flint guilty at a second trial. Raising double jeopardy, Flint sought relief in the Wisconsin appellate courts; when that failed, he moved for federal postconviction relief. But the district court concluded that Flint failed to overcome the high hurdle for granting habeas imposed by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 (AEDPA). According to the district court, the Wisconsin Court of Appeals reasonably applied the Supreme Court's decision in Arizona v. Washington , 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), which requires great deference to a trial judge's "manifest necessity" determination. So the district court denied Flint's habeas petition.

We agree. Although we have our reservations about whether a mistrial should have been declared, deference to the discretion of a trial judge and to state court judgments requires that we affirm the denial of Flint's habeas petition under § 2254.

I

A

On July 10, 2012, four men robbed a liquor store in Pleasant Prairie, Wisconsin. Hours later, three of those men also robbed a gas station in Antioch, Illinois. Surveillance video from the liquor store and gas station captured these robberies, and law enforcement eventually identified three of the men as participating in both: Kenneth Cooper, Cortez Holliman, and Paris Williams. The fourth man remained unidentified.

Five days later, on July 15, 2012, Cooper, Holliman, and Williams committed another robbery in Antioch. A highspeed chase ensued. Holliman and Williams died from the resulting car crash, and Cooper survived. Recovering from serious injuries, Cooper spoke to law enforcement from his hospital bed. When shown a still image from surveillance footage of the liquor store robbery, he remarked: "is it Twon?" An officer then asked who "Twon" was, and Cooper clarified that he was speaking about Antwon Flint. Although Cooper equivocated about whether it was Flint depicted in the still image, he ultimately signed a statement identifying Flint as the fourth man from the liquor store robbery in Pleasant Prairie. Flint denied involvement.

Charged with armed robbery by use of force as a party to the crime, Flint went to trial in Wisconsin state court on June 16, 2014. The prosecutor gave his opening statement and described, among other things, the testimony that Cooper would provide during trial—mainly, his identification of Flint as the fourth man from the liquor store robbery. Identifying Flint "wasn't easy" for Cooper, the prosecutor told the jury, because Cooper "was giving up somebody he had known a long time." Flint's counsel began her opening statement by picking up on the importance of Cooper's testimony. After describing the circumstances of Cooper's hospital bed identification of Flint, she referenced the bond between the two men, stating: "Now, two months after the robbery the police find my client and interview him. My client, thinking that he's being cooperative, talks to them, says, yes, I know Kenneth Cooper; he and I have been childhood friends."

At this point, the prosecutor objected and moved for a mistrial. The reference to what Flint said to the police was inadmissible hearsay, the prosecutor argued, introduced "in an attempt to indicate that he was cooperative and that he was acknowledging things that would be helpful to the defense." So to the prosecutor, that left a mistrial as "[t]he only remedy available to the Court." Flint's counsel disagreed. She contended that a mistrial was inappropriate because multiple witnesses would present evidence of the friendship between Cooper and Flint. But according to the prosecutor, that was beside the point; what mattered was that the jury could believe that Flint made a cooperative gesture to law enforcement. Persuaded, the trial judge granted a mistrial and ruled that the statement was "hearsay" that "obviously could not come in." With that, the trial judge scheduled a new trial date for Flint and released the jury pool.

On September 8, 2014, preparations for Flint's second trial began, but with a different trial judge presiding. Before selecting and swearing a jury, the second trial judge raised the issue of double jeopardy sua sponte and inquired about the mistrial declared in the first trial; if a "manifest necessity" had not supported that mistrial, then the protection against double jeopardy would bar a second trial. The prosecutor and Flint's counsel next recounted their arguments about the alleged hearsay from the first trial, although their accounts conflicted.

The second trial judge had a problem: he did not have the transcript of the first trial. Recognizing the difficulty in deciding this issue without it, the second trial judge called the judge from the first trial, whose recollection appeared to favor the prosecutor's account. After the jurors were selected (but before they were sworn), the second trial judge told Flint's counsel that a transcript would have to be procured to pursue a double jeopardy motion.

That next morning of September 9, 2014, the second trial judge—now with a transcript of the relevant trial portions in hand—found that the statements by Flint's counsel "were sufficient to cause a mistrial at the earlier point in the proceedings." Flint's counsel, the second trial judge noted, asserted that Flint "was trying to be cooperative, which [was] an affirmative statement by the defendant." That affirmative statement went "uncross-examined" and was thus "hearsay," lacking corroboration from other witnesses. Similarly, affirmative statements about Flint's "acquaintanceship with Kenneth Cooper," even with additional corroboration, confirmed the appropriateness of a mistrial because it was "still [Flint] speaking to the jury about it as opposed to others." The second trial judge was therefore "not apprehensive about retrying this case."

After a second trial, a jury found Flint guilty, and he received a sentence of seven years’ imprisonment and seven years’ supervision. As required under WIS. STAT. § 809.30(2)(h), Flint first moved for postconviction relief in the trial court, raising his double jeopardy claim, among others. That motion failed, and a direct appeal followed.

In an unpublished, per curiam opinion, the Wisconsin Court of Appeals denied Flint relief. Relying on State v. Mink , 146 Wis.2d 1, 429 N.W.2d 99, 102–03 (Wis. Ct. App. 1988), that court explained that in Wisconsin, "[i]f the State moves to retry a defendant after a mistrial, the defendant must move for dismissal on double jeopardy grounds to avoid forfeiture."¹ Because Flint "moved to dismiss the second trial on the sole basis that the State failed to preserve or disclose exculpatory evidence," he forfeited his double jeopardy claim as a result. But Wisconsin law still permits review of forfeited claims as part of the ineffective assistance of counsel framework, State v. Erickson , 227 Wis.2d 758, 596 N.W.2d 749, 754–55 (1999), so the Wisconsin Court of Appeals addressed Flint's double jeopardy claim under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that the attorney's performance was both deficient and prejudicial.

Flint failed to satisfy Strickland . The Wisconsin Court of Appeals was "satisfied that the trial court properly exercised its discretion" in calling a mistrial, analyzing the manifest necessity standard from Washington under Strickland ’s prejudice prong. Flint, that court held, "assert[ed] an unsupported claim of prejudice from counsel's failure to move for dismissal based on double jeopardy." Although the first trial judge did not expressly consider a curative instruction, "that does not mean he did not consider it." Even then, "that avenue ‘will not necessarily remove the risk of bias that may be created by improper argument.’ " (quoting Washington , 434 U.S. at 513, 98 S.Ct. 824 ). Recognizing that Washington requires great deference to a trial court's discretion, the Wisconsin Court of Appeals concluded that a motion to dismiss on double jeopardy grounds "likely would have failed." The court reasoned that "[a]n attorney is not ineffective for failing to make meritless arguments." And " ‘a failure to challenge a correct trial court ruling cannot establish’ prejudice." (alteration omitted) (quoting State v. Ziebart , 268 Wis.2d 468, 673 N.W.2d 369, 375 (Wis. Ct. App. 2003) ).

With his other claims rejected, Flint unsuccessfully petitioned for discretionary review by the Wisconsin Supreme Court.

B

Proceeding pro se, Flint petitioned for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254. The state moved to dismiss, and the district court appointed counsel....