Long v. Humphrey

• Decision Date: 14 May 1999
• Docket Number: No. 98-3409,98-3409
• Citation: 184 F.3d 758
• Parties: (8th Cir. 1999) EVELYN LOUISE LONG, APPELLANT, v. HUBERT H. HUMPHREY, III, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 758

184 F.3d 758 (8th Cir. 1999)

EVELYN LOUISE LONG, APPELLANT, v. HUBERT H. HUMPHREY, III, APPELLEE.

No. 98-3409

U.S. Court of Appeals, Eighth Circuit

Submitted: May 14, 1999

Filed: July 14, 1999

Appeal from the United States District Court for the District of Minnesota.

Lawrence Hammerling, Minneapolis, MN, argued, for Appellant.

Mark Nathan Lystig, St. Paul, MN, argued, for Appellee.

Before McMILLIAN, Bright, and Fagg, Circuit Judges.

Fagg, Circuit Judge.

Evelyn Louise Long appeals the denial of her petition for writ of habeas corpus. See 28 U.S.C. § 2254 (1996). We reverse.

Long stabbed her husband during a quarrel. At Long's state court jury trial, the main issue was whether Long acted in self-defense. Long's husband testified Long attacked him without provocation as he sat in a chair. On the other hand, Long testified her husband pushed her roughly and she retreated to the kitchen, grabbed a knife, and stabbed her husband when he came after her. The prosecutor called a police officer to rebut Long's testimony that her husband was standing when she stabbed him. The officer had interviewed Long after her arrest and summarized the encounter in a written report disclosed to the defense before trial. The report stated Long "was lying on the sofa when her husband pushed her, she then got up[,] went into the kitchen and returned to the living room area with a knife, her husband then told her 'go ahead and do it', L[ong] then stabbed her husband who was sitting down." Shortly before the officer took the stand, he informed the prosecutor the interview had also been taped. The prosecutor promptly notified Long's counsel and the court outside the jury's presence and also explained the tape contained "two small points" not included in the officer's report first, Long said she went to the bathroom before going into the kitchen, a point she denied at trial, and, second, Long said her husband had been drinking at the time of the stabbing, a circumstance about which Long did not testify.

Long initially moved for a mistrial. In response, the prosecutor offered to either waive rebuttal, play the entire tape and limit the officer's testimony to foundational issues, or not play the tape and limit the officer's testimony to the written report. The court instructed Long to listen to the tape and discuss her options with her counsel. After doing so, Long withdrew the mistrial motion, stating the "jury was picked by the defense" and she wanted "to have the jury hear the tape and let them evaluate it in the way that they think... [they] need to." The court acknowledged Long was making a knowing, intelligent, and voluntary waiver of her objections to the tape's late disclosure, but stated, "I'm not willing to put you in that position." Despite Long's desire to proceed, the court declared a mistrial on its own motion.

When the state sought to retry Long, Long moved to bar retrial as a violation of double jeopardy, arguing no manifest necessity required the trial court to grant a mistrial over her objection. The trial court denied Long's motion. After exhausting her state court remedies, Long filed a petition for writ of habeas corpus, which the federal district court denied.

On appeal, Long contends the district court should have granted her habeas petition because the trial court's declaration of a mistrial over her objection "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (1996). We agree.

Because § 2254(d)(1) directs this court to grant Long's petition only if the trial court's decision was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, we must first identify the controlling case law. When a trial court orders a mistrial over the defendant's objection, the Supreme Court has stated double jeopardy bars a retrial unless there was manifest necessity for the mistrial. See Arizona v. Washington, 434 U.S. 497, 503-05 (1978); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). The Court has cautioned that manifest necessity is a high degree of necessity, see Washington, 434 U.S. at 506, and that the power to declare a mistrial over the defendant's objection should be exercised only "under urgent circumstances, and for very plain and obvious causes." Perez, 22 U.S. (9 Wheat.) at 580; accord Washington, 434 U.S. at 506 n. 18.

Given the existence of clearly established Supreme Court precedent governing Long's claim, we must next decide whether the trial court's decision was "contrary to" or an "unreasonable application" of that precedent. See § 2254(d)(1). These terms are undefined in § 2254, and, although we have not addressed the issue, their meaning and application have been the subject of much debate among other federal courts of appeals. See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 885-91 (3d Cir. 1999) (en banc), petition for cert. filed, (U.S. June 22, 1999) (No. 98-2050); Davis v. Kramer, 167 F.3d 494, 500 (9th Cir. 1999), petition for cert. filed, 67 U.S. L. W. 3570 (U.S. Mar. 8, 1999) (No. 98-1427); O'Brien v. Dubois, 145 F.3d 16, 21-25 (1st Cir. 1998); Green v. French, 143 F.3d 865, 869-73 (4th Cir. 1998), cert. denied, 119 S. Ct. 844 (1999); Neelley v. Nagle, 138 F.3d 917, 922-24 (11th Cir. 1998), cert. denied, 119 S. Ct. 811 (1999); Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751, 767-69 (5th Cir. 1996). Because Long's appeal does not present a pure question of law and because the manifest necessity standard cannot be applied mechanically to require a particular result in Long's case, see Washington, 434 U.S. at 506, the parties concede the trial court's decision was not "contrary to" established Supreme Court precedent under any circuit's test. See, e. g., Drinkard, 97 F.3d at 768 (" contrary to" existing precedent if state court made error of pure law); O'Brien, 145 F.3d at 25 (" contrary to" if controlling case law requires different outcome either because of factual similarity to state case or because general federal rules require particular result in particular case).

Thus, the resolution of Long's appeal hinges on the unreasonable application prong of § 2254(d)(1). The circuits also differ about what is unreasonable in the application of the Court's precedent. Some circuits hold a state court's decision is unreasonable if the state court applied controlling precedent in a manner all reasonable jurists would agree was unreasonable, see Green, 143 F.3d at 870; Neelley, 138 F.3d at 924; Drinkard, 97 F.3d at 769, while other circuits consider whether the decision is "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes," O'Brien, 145 F.3d at 25; accord Hall v. Washington, 106 F.3d 742, 749 (7th Cir.), cert. denied, 118 S. Ct. 264 (1997); cf. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1999) (combining these two tests), cert. denied, 67 U.S. L. W. 3654 (U.S. June 14, 1999) (No. 98-1665). The Third Circuit has rejected both of these tests, stating that the reasonable jurist test discourages the granting of relief by requiring federal habeas courts to hold the state court acted in a way no reasonable jurist would under the circumstances and that the outside-the-universe-of-plausible-outcomes test excludes all but those decisions so off the mark that they approach judicial incompetence. See Matteo, 171 F.3d at 889. Instead, the Third Circuit holds "[t]he federal habeas court should not grant the petition unless the state court decis...