Eddy MARTE, Luis Marte, Petitioners-Appellants, v. Cyrus R. VANCE, Jr., District Attorney for the County of New York, Respondent-Appellee, 480 F. App'x 83

SUMMARY ORDER Eddy and Luis Marte appeal the denial of their habeas petition seeking to bar their retrial by New York State on charges of attempted robbery as violating the Double Jeopardy Clause. They submit that neither manifest necessity nor implied consent existed to justify the declaration of a prior partial mistrial on the charges at issue so as to allow retrial. While only one level of the New York courts to review the Martes’ double jeopardy challenge found retrial justified by manifest necessity, all three have found implied consent. See Marte v.

Berkman, 16 N.Y.3d 874, 876, 925 N.Y.S.2d 388, 389, 949 N.E.2d 479 (2011); Marte v. Berkman, 70 A.D.3d 493, 493, 895 N.Y.S.2d 376, 377 (1st Dep’t 2010); People v. Marte, No. 2420/08 (N.Y.Sup.Ct. N.Y.Cnty. June 1, 2009). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1. Standard of Review We review the district court’s denial of the Martes’ habeas petition de novo. See Lopez v. Terrell, 654 F.3d 176, 180 (2d Cir.2011).

Insofar as the parties dispute the district court’s decision on a § 2241 petition to apply de novo review to the state courts’ ruling, rather than to accord the deference established by the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, for § 2254 petitions, we need not resolve the matter because petitioners’ challenge fails even under de novo review. 2. Implied Consent When an accused consents to declaration of a mistrial, the Double Jeopardy Clause does not bar retrial. See, e.g., United States v. Razmilovic, 507 F.3d 130, 140-41 (2d Cir.2007).

Such consent “need not be express, but may be implied from the totality of circumstances attendant on a declaration of mistrial.” United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir.1973). Indeed we have observed that “consent can be inferred where defendant was afforded ‘minimal but adequate opportunity to object’ while mistrial was being declai'ed.” Maula v. Freckleton, 972 F.2d 27, 29 (2d Cir.1992) (quoting Camden v. Circuit Court of Second Judicial Circuit, 892 F.2d 610, 615 (7th Cir.1989)).

On de novo review of the totality of the circumstances, we conclude, as did the district court, the New York Supreme Court, the Appellate Division, and the New York Court of Appeals, that petitioners implicitly consented to the declaration of mistrial. After receiving a note from the jury stating that it was at an impasse on certain counts, the trial judge voiced his “inclination” to take a partial verdict and declare a mistrial as to the other charges. Special App. at 48. The court then specifically asked if defense counsel wished to be heard on the proposed course of action.

Defense counsel not only indicated that they did not wish to be heard, but also confirmed that the court intended to follow its inclination to take a partial verdict. These circumstances, by themselves, demonstrate implicit consent to the trial court’s inclination to declare a mistrial on other counts. As the New York Court of Appeals observed in its published decision in this case, the very purpose of the described conference was “for the attorneys to advise the court concerning the appropriate response to a jury note in order to assist the court in averting error.” Marte v.

Berkman, 16 N.Y.3d at 876, 925 N.Y.S.2d at 389, 949 N.E.2d 479 (citing People v. O’Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991)). .To not recognize implicit consent in counsels’ action (and inaction) in response to the trial court’s preview of its intended response to the jury report of impasse would allow defense counsel to create “the false impression of acquiescence even while anticipating a subsequent objection,” thus defeating the purpose of an O’Rama conference. Id. The Court of Appeals’ approach to implicit consent thus accords with federal jurisprudence. See Maula v.

Freckleton, 972 F.2d at 29 (inferring such consent “tracks the general principle applied in other areas of trial practice, when failure to object to a ruling, which at the time it is made or proposed could readily be changed, will bar future attempts to review that ruling” (emphasis added)).

The finding of implicit consent in this case is, moreover, reinforced by defense counsels’ failure to avail themselves of other opportunities to voice objection to the declaration of a mistrial, notably when counsel declined the court’s invitation to be heard after the jury was polled, and failed to speak before the court discharged the jury from the courtroom. Only after the jury was discharged and left the courtroom did defense counsel first signal a belated objection to the mistrial declaration.

Although we have recognized that “the decision to declare a mistrial is not irreversible until the jury has been discharged,” here the jury was discharged. United States v. Razmilovic, 507 F.3d at 141 (observing that “‘[o]nce the jury is discharged and has dispersed, a trial court is unable to reconsider its intention to declare a mistrial’ ” (quoting Camden v. Circuit Court of the Second Judicial Circuit, 892 F.2d at 616 n. 7)). The record indicates that after the trial judge dismissed the jury, defense counsel requested that the jury be held.

The trial judge so instructed the court officer, but the record is not clear as to whether the court officer was able to carry out the instruction. In these circumstances, we do not attempt to resolve record ambiguities as to the exact physical whereabouts of the jurors at the time defense counsel voiced objections “to protect the record.” Special App. at 53. Rather, we conclude that a belated attempt to establish a record cannot substitute for a timely objection to a decision that had already been previewed and then made under circumstances where defense counsel’s own words and actions implied consent. 8.

Manifest Necessity Respondent submits that even without consent, petitioners’ double jeopardy challenge fails because the mistrial was supported by manifest necessity. See United States v. Razmilovic, 507 F.3d at 136 (retrial permitted where mistrial compelled by “manifest necessity”).

Recognizing that “the trial court is in the best position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate,” we generally accord the trial court “broad discretion in deciding whether or not ‘manifest necessity’ justifies a discharge of the jury.” Arizona v. Washington, 434 U.S. 497, 509, 510 n. 28, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); accord United States v. Razmilovic, 507 F.3d at 137.

In this case, we are mindful that the Appellate Division and the New York Court of Appeals have not upheld the challenged mistrial on this ground. But, because our identification of implied consent is enough, by itself, to affirm the district court’s judgment, we rely on that ground and do not further pursue the question of manifest necessity. 4. Conclusion The judgment denying habeas relief is AFFIRMED and the district court’s stay of state criminal proceedings is VACATED. .

Although petitioners originally brought their petition under 28 U.S.C. § 2254, the district court converted the petition to one under § 2241 on the ground that the Martes, released on bail pending charges but not convicted of a crime, are not in custody "pursuant to the judgment of a state court.” 28 U.S.C. § 2254(a). No party challenges this decision. . We have no occasion to consider to what extent the Court of Appeals’ conclusions on this issue may represent rulings of state procedural law that cannot be reviewed by this court. See Maula v.

Freckleton, 972 F.2d at 28 (" '[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions’ ” (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991))).