Seay v. Cannon

• Decision Date: 21 June 2019
• Docket Number: No. 18-7242,18-7242
• Citation: 927 F.3d 776
• Parties: Broderick William SEAY, Jr., Petitioner-Appellant, v. Sheriff Al CANNON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

927 F.3d 776

Broderick William SEAY, Jr., Petitioner-Appellant,

v.Sheriff Al CANNON, Respondent-Appellee.

No. 18-7242

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2019

Decided: June 21, 2019

ARGUED: Jason Scott Luck, GARRETT LAW OFFICES, LLC, Charleston, South Carolina; Sara Alexandra Turner, LAW OFFICE OF SARA A. TURNER, LLC, Charleston, South Carolina, for Appellant. Melody Jane Brown, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.

Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded with instructions by published opinion. Judge Keenan wrote the opinion, in which Judge Quattlebaum joined. Judge Niemeyer wrote a dissenting opinion.

BARBARA MILANO KEENAN, Circuit Judge:

Broderick William Seay, Jr. appeals from the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2241. Seay argues that his rights under the Double Jeopardy Clause of the Fifth Amendment will be violated if the State of South Carolina (the government) retries him on murder charges in state court. The state trial court granted a mistrial in the original proceedings based on the failure of the government's critical witness to appear at Seay's trial. In Seay's view, the government failed to meet its burden of showing manifest necessity for a mistrial after the jury was empaneled and jeopardy had attached. The district court denied habeas relief, holding that under the facts presented it was appropriate to defer to the state trial court's finding of manifest necessity.

Employing "strictest scrutiny" review, we conclude that the government failed to satisfy its high burden of showing manifest necessity for a mistrial. The record shows that the government allowed the jury to be empaneled knowing that the crucial witness might not appear to testify. Additionally, the state trial court failed to consider possible alternatives to granting the government's mistrial motion. We therefore vacate the district court's judgment, and remand with instructions that the district court award Seay habeas corpus relief.

I.

In 2015, a South Carolina grand jury indicted Seay on a charge of murder, in violation of South Carolina Code § 16-3-10. The government alleged that two of Seay's co-conspirators, Kevin Howard and Tyrone Drayton, kidnapped the victim, Adrian Lyles, from his home in 2012. According to the government, Seay later joined the group and, together with Howard and Drayton, drove to a remote South Carolina island where the three men shot Lyles a total of ten times in retaliation for Lyles' work as an informant for law enforcement authorities.

Howard was the first co-conspirator tried for murder. At that trial, Howard's former girlfriend, Startasia Grant, testified as a cooperating witness for the government.¹ Most relevant here, Grant testified that she joined Howard, Seay, and Drayton shortly after the time that Lyles was killed. When Grant first encountered the group, she noticed that Howard's hand was bleeding and that the three men acted "agitated" and "jumpy." Grant also testified about her interactions with the men in the hours following the murder, including her suspicion that Howard was carrying a bag with a shotgun inside. Her testimony placed Seay with the co-conspirators around the time of the murder.

After hearing additional evidence in the case, the jury found Howard guilty on the charge of murder. The state court sentenced Howard to serve a term of life imprisonment. At the time Grant testified at Howard's trial, she had been charged with obstruction of justice for her role in attempting to "cover up" the crime. However, the government dismissed that charge after Grant testified at Howard's trial.

More than two years after Howard's trial, in June 2016, the government issued a subpoena requiring Grant to testify at Seay's trial. Pursuant to the subpoena, Grant was directed to appear in the state trial court at 9:00 a.m. on "each day" of the term of court beginning on Monday, July 25, 2016. The subpoena also explained that the prosecutor's office "may be able to give [the witness] a more specific date and time to appear in Court" under certain circumstances, but nothing in the record indicates that the government advised Grant not to appear as directed on Monday.

The trial was scheduled to begin on the first day of that term, Monday, July 25, 2016. Although the prosecutor and the government's investigator spoke with Grant the weekend before the scheduled trial, Grant did not appear as required that Monday. For reasons unrelated to Grant's failure to appear, the court continued the trial to the next day.

When the court convened the following day, Tuesday, July 26, 2016, Grant again failed to appear as required by her subpoena. Despite the absence of this crucial witness, the government did not seek to delay the trial, and the jury was empaneled. The government presented testimony from eight witnesses on the first day of trial. Meanwhile, the government's investigator attempted to contact Grant and left multiple messages directing her to appear in court the following morning.

On Wednesday, July 27, 2016, Grant once again failed to appear in court as ordered. After the government presented the testimony of one additional witness, the government for the first time raised to the state trial court the issue of Grant's nonappearance. The government informed the court that, since speaking with Grant on Saturday, Grant had "not been cooperative with [the prosecutor's] office at all."² The state trial court issued a bench warrant for Grant's arrest, and adjourned court until the next day to permit law enforcement authorities to attempt to locate her. When the court reconvened the following day, Thursday, July 28, 2016, the authorities had not located Grant, and she again failed to appear pursuant to the subpoena.

The government immediately moved for a mistrial, claiming surprise that Grant had failed to appear as a witness. The government further stated: "We are asking for a mistrial because at this point we do not know if [ ] Grant is alive. We do not know if she has been injured. We do not know if she is just scared. We do not know if she has been threatened." Seay opposed the mistrial motion, arguing that there was no evidence that he had attempted to dissuade Grant from testifying, and that the government had failed to meet the manifest necessity standard required for ordering a mistrial. After hearing further argument from counsel, the state trial court, as part of its basis for granting the motion, stated: "I do feel that the State has been caught by surprise. ... [T]he case is ongoing as of this moment. I think the public is entitled to a fair trial as is" the defendant. The court then granted a mistrial without any consideration on the record of other measures that could have been taken.

Seay later filed a motion to dismiss the indictment in state court, asserting that the constitutional protection against double jeopardy barred him from being retried on the state murder charge. After the state trial court denied Seay's motion, Seay filed a petition in the federal district court seeking habeas corpus relief under 28 U.S.C. § 2241 on the ground that a second trial would violate his rights under the Double Jeopardy Clause.³ On the recommendation of the magistrate judge, the district court denied Seay's petition. However, the district court granted a certificate of appealability, and Seay now appeals to this Court.

II.

A.

We review de novo the district court's denial of habeas corpus relief under 28 U.S.C. § 2241. Fontanez v. O'Brien , 807 F.3d 84, 86 (4th Cir. 2015). Because Seay challenges his pretrial detention on double jeopardy grounds under Section 2241, the special deference we ordinarily accord to state court judgments under 28 U.S.C. § 2254 is inapplicable here. See Phillips v. Court of Common Pleas , 668 F.3d 804, 810 (6th Cir. 2012) (collecting cases from First, Fifth, Ninth, and Tenth Circuits); see also Walck v. Edmondson , 472 F.3d 1227, 1235 (10th Cir. 2007). Section 2241 entitles a prisoner to habeas corpus relief if "[h]e is in custody in violation of the Constitution or laws or treaties of the United States."⁴ 28 U.S.C. § 2241(c)(3).

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, prohibits states from subjecting a person to trial twice for the same crime. See Crist v. Bretz , 437 U.S. 28, 32-36, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). "In a jury trial, jeopardy attaches when the jury is empaneled," after which "the defendant has a constitutional right, subject to limited exceptions, to have his case decided by that particular jury." United States v. Shafer , 987 F.2d 1054, 1057 (4th Cir. 1993) (footnote omitted). Those exceptions apply only when the defendant's right is outweighed by "the public's interest in fair trials designed to end in just judgments." Id. (citation omitted). Accordingly, when a defendant objects to a mistrial, he may be retried only if the mistrial was "required by ‘manifest necessity.’ " Id. (quoting Arizona v. Washington , 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) ); see also Gilliam v. Foster , 75 F.3d 881, 893 (4th Cir. 1996) (en banc).

The government's burden of establishing manifest necessity is "a heavy one," and is subject to especially searching review when the government seeks a mistrial "in order to buttress weaknesses in [its] evidence." Arizona , 434 U.S. at 505, 507, 98 S.Ct. 824. Thus when, as here, "the basis for the mistrial is the unavailability of critical prosecution evidence,"⁵ we apply "the strictest scrutiny" to the question of manifest necessity. Id. at 508, 98 S.Ct. 824. With these principles in mind, we proceed to consider Seay's...