Walls v. Konteh

• Decision Date: 15 June 2007
• Docket Number: No. 06-3472.,06-3472.
• Citation: 490 F.3d 432
• Parties: Lawrence WALLS, Petitioner-Appellee, v. Kelleh KONTEH, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

490 F.3d 432

Lawrence WALLS, Petitioner-Appellee, v. Kelleh KONTEH, Warden, Respondent-Appellant.

No. 06-3472.

United States Court of Appeals, Sixth Circuit.

Argued: March 13, 2007.

Decided and Filed: June 15, 2007.

ARGUED: Diane Mallory, Office of the Attorney General, Columbus, Ohio, for Appellant. John F. Potts, Law Office of John F. Potts, Toledo, Ohio, for Appellee. ON BRIEF: Diane Mallory, Office of the Attorney General, Columbus, Ohio, for Appellant. John F. Potts, Law Office of John F. Potts, Toledo, Ohio, for Appellee.

Before: NORRIS, GILMAN, and McKEAGUE, Circuit Judges.

NORRIS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. GILMAN, J. (pp. ___-___), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

Warden Kelleh Konteh appeals from the judgment of the district court granting petitioner Lawrence Walls a writ of habeas corpus based upon its conclusion that the sua sponte declaration of a mistrial by the judge in his state-court trial violated petitioner's right not to be placed twice in jeopardy. Walls v. Konteh, 418 F.Supp.2d 962 (N.D.Ohio 2006). This appeal requires us to balance petitioner's double jeopardy interest against the determination of the state trial judge that calamitous events occurring outside the courtroom — the September 11, 2001 attacks upon the World Trade Center and Pentagon — created the kind of "manifest necessity" that justified a mistrial. While there are undoubtedly considerations that weigh in favor of the contrary position, we conclude that the trial judge acted within the bounds of his discretion in view of the novel and fluid circumstances that existed at the time of his decision. Specifically, he expressed concern that the jurors would be so distracted by outside events that they would be unable to focus on the trial, thereby compromising petitioner's right to a verdict based upon the evidence.

Because this case comes to us in a habeas posture, a writ may issue only if we conclude that the state-court decision "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). For the reasons that follow, we hold that the Ohio Court of Appeals' affirmance of the declaration of a mistrial was neither "contrary to," nor an "unreasonable" application of, federal law. Consequently, the judgment of the district court must be reversed.

I.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). This consideration, coupled with the fact that the underlying facts are essentially undisputed, make the summary provided by the Ohio Court of Appeals the best place to begin our analysis:

On May 31, 2001, appellant was indicted on one count of aggravated robbery, one count of aggravated burglary, one count of felonious assault, and one count of robbery. A jury trial commenced on September 10, 2001. On September 11, 2001, the trial judge sua sponte declared a mistrial and rescheduled the case for a pretrial hearing on September 17, 2001. On September 18, 2001, appellant filed a motion to dismiss the case on the grounds of double jeopardy. On October 9, 2001, a visiting judge conducted a hearing on the motion and found that the trial judge had not abused his discretion in sua sponte granting a mistrial.

A bench trial commenced on November 5, 2001. On November 6, 2001, appellant was found guilty of aggravated robbery with a firearm specification, aggravated burglary with a firearm specification, and the second degree felony offense of robbery. He was sentenced to 11 years in prison. . . .

. . . .

At the dismissal hearing, the Honorable Charles S. Wittenberg testified that he was presiding over appellant's trial on the morning of September 11, 2001. The state had rested its case the day before and the defense was scheduled to begin its case with an alibi witness. Judge Wittenberg testified that before the trial began that morning he was informed that terrorists had just crashed an airliner into the World Trade Center in New York City. The jurors were unaware of the unfolding events. During testimony, the judge received a note from someone informing him that there had been a "bombing" at the pentagon and another plane crash in Pennsylvania. The Judge testified that he also received information that a plane containing a bomb was flying from the city of Cleveland towards Toledo.

The Judge called a recess and asked to speak to a specific juror who was a member of the air force. Knowing the military was on active alert, Judge Wittenberg testified that he thought it was important to tell the juror about the attacks and to give him an opportunity to call his commanding officer. Both the prosecution and defense counsel agreed to the discharge of the juror.

The judge testified that he then decided to recess for the day and tell the other jurors about the breaking national news. The Judge excused the jurors and instructed them to call the court later in the day to find out whether or not they should report back to the courtroom the next morning. The attorneys were also excused. The judge testified that within a half hour of excusing the jury, the courthouse was evacuated and closed.

Soon after, Judge Wittenberg testified that he summoned the prosecutor back to the courtroom and contacted defense counsel by phone. In chambers, the judge informed counsel that: "I have no idea what's going to happen tomorrow, so at this point, I think we'll leave a message for the jurors not to return and just declare a mistrial." Defense counsel objected to the declaration.

Appellant contends that it was improper for the trial judge to sua sponte declare a mistrial before he had determined that a fair trial was no longer possible and before he had considered other alternatives.

The trial judge in this case testified that prior to declaring a mistrial, he was concerned about the effect the breaking national news would have on the jury. The judge noted the seriousness of the charges and testified he was worried the jurors would not be able to devote their full attention to the evidence given the fact that the country appeared to be under attack. He further testified that he considered the option of instructing the jurors to return the next day. He testified he rejected the option because, once again, he was worried about the jurors' ability to concentrate and because he did not know if the courthouse would be open the next day. Based on the particular facts in this case as well as the foregoing testimony, we conclude that the trial judge properly exercised his discretion in finding a manifest necessity for declaration of a mistrial. Appellant's sole assignment of error is found not well-taken.

State v. Walls, No. L-01-1492, 2003 WL 220460, at *1-2 (Ohio App. Jan. 31, 2003).

II.

Before reviewing the legal reasoning of the Ohio Court of Appeals, which upheld the trial judge's declaration of a mistrial, it is worth remembering the lens through which AEDPA requires us to view state court decisions. As already mentioned, the writ shall not issue unless the state-court adjudication "resulted in a decision that was contrary to, or 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).¹ This standard requires that federal courts give considerable deference to state-court decisions. Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998) ("[AEDPA] tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called unreasonable.") (citation and quotation marks omitted).

A state-court decision is considered "contrary to . . . clearly established Federal law" if it is "diametrically different, opposite in character or nature, or mutually opposed." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation marks omitted). Alternatively, to be found an "unreasonable application of . . . clearly established Federal law," the state-court decision must be "objectively unreasonable" and not simply erroneous or incorrect. Id. at 409-11, 120 S.Ct. 1495. In short, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also have been unreasonable." Id. at 411, 120 S.Ct. 1495.

The key question, then, is whether the decision of Judge Wittenberg, as affirmed by the Ohio Court of Appeals,² is either contrary to, or an unreasonable application of, established United States Supreme Court precedent. Herbert v. Billy, 160 F.3d at 1135 ("A district court or court of appeals no longer can look to lower federal court decisions in deciding whether the state decision is contrary to, or an unreasonable application of, clearly established federal law."). Moreover, "clearly established federal law" is determined by "the holdings, as opposed to the dicta," of United States Supreme Court decisions, as of the time of the state court decision under review. Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006) (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). The Ohio Court of Appeals reached its decision based upon the following reasoning:

It is within a trial judge's sound discretion to grant a mistrial. State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343. The Double Jeopardy Clauses of the United States and the Ohio Constitutions protect against successive prosecutions and successive punishments for the same offense. United States v. Dixon (1993), 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556. A trial court's sua sponte...