Lawrence WALLS, Petitioner-Appellee, v. Kelleh KONTEH, Warden, Respondent-Appellant, 490 F.3d 432

NORRIS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. GILMAN, J. (pp. 440-44), 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 habe-as 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 (“AED-PA”), 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 Wit-tenberg 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). 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, 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 declaration of mistrial does not violate the double jeopardy doctrine so long as (1) a manifest necessity existed or the ends of public justice would otherwise be defeated and (2) the trial court considered alternatives to declaring a mistrial. Arizona v. Washington (1978), 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717.

A trial court has discretion to declare a mistrial where (1) “manifest necessity” or a “high degree of necessity” dictate; (2) the trial judge has no reasonable alternative to declaring a mistrial; and (3) the public interest in fair trials designed to end in just judgments is best served by ordering a mistrial. State v. Widner (1981), 68 Ohio St.2d 188, 190, 429 N.E.2d 1065. “It is clear that manifest necessity is not synonymous with absolute necessity, but that a ‘high degree’ of necessity must exist before a mistrial may properly be declared.” United States v.

Cameron, (6th Cir.1992) 953 F.2d 240, 244, citing Washington, 434 U.S. at 506, 98 S.Ct. 824. In evaluating whether the declaration of a mistrial was proper in a particular case, the Supreme Court of Ohio has “declined to apply inflexible standards, due to the infinite variety of circumstances in which a mistrial may arise.” State v. Glover (1988), 35 Ohio St.3d 18, 19, 517 N.E.2d 900, citing Widner, supra.

Rather, the Ohio Supreme Court “has * * * adopted an approach which grants great deference to the trial court’s discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his [or her] courtroom warrants the declaration of a mistrial.” State v. Glover, supra. State v. Walls, supra, at *1. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subjected for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.

This provision “represents a fundamental ideal in our constitutional heritage, and it ... applies] to the States through the Fourteenth Amendment.” Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). As the Ohio Court of Appeals recognized, for our purposes the most instructive United States Supreme Court case on the subject is Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

In Washington, the trial court declared a mistrial on the motion of the prosecutor, who objected to “improper and prejudicial comment during defense counsel’s opening statement.” Id. at 498, 98 S.Ct. 824. The Court framed the issues before it as follows: The questions presented are whether the record reflects the kind of “necessity” for the mistrial ruling that will avoid a valid plea of double jeopardy, and if so, whether the plea must nevertheless be allowed because the Arizona trial judge did not fully explain the reasons for his mistrial ruling. Id.

Just as in the case before us, the trial judge in Washington “did not expressly find that there was ‘manifest necessity’ for a mistrial; nor did he expressly state that he had considered alternative solutions and concluded that none would be adequate.” Id. at 501, 98 S.Ct. 824. After discussing why double jeopardy precludes a second trial in most situations, the Court explained that a retrial is permissible when “manifest necessity” requires it. Id. at 505, 98 S.Ct. 824.

That concept was originally defined by Justice Story as follows: We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.

To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.... But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

While adopting Justice Story’s “classic formulation,” the Court in Washington emphasized that it required flexibility in its application: [T]hose words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word “necessity” cannot be interpreted literally; instead ... we assume that there are degrees of necessity and we require a “high degree” before concluding that a mistrial is appropriate. Id. at 506, 98 S.Ct. 824 (footnotes omitted).

In Washington, the Court considered whether the trial court’s perception that the jury would be impermissibly biased by the inappropriate comments of defense counsel during opening argument was entitled to deference. The Court concluded that it was: “There are compelling institutional considerations militating in favor of appellate deference to the trial judge’s evaluation of the significance of possible juror bias.” Id. at 513, 98 S.Ct. 824 (footnote omitted).

This is so even when alternatives are available: We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions.

In a strict, literal sense, the mistrial was not “necessary.” Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment. Id. at 511, 98 S.Ct. 824.

In light of the guidance provided by Washington, it is clear that the district court overemphasized Judge Wittenberg’s failure to explore alternatives adequately before declaring a mistrial: There were several alternatives available to the Judge ... which the trial court could have undertaken to avoid a mistrial or at least to investigate as to whether a mistrial was necessary.

Not only could he have called the jurors back the next day and conducted voir dire to determine their ability to continue, he could have placed a message on the court telephones that the jurors should phone in on a daily basis to determine when they would be returning to the courthouse. Alternatively, because of the relatively small number of people involved, the Court Administrator or other administrative personnel could have undertaken to call the individual jurors back into service when the court activities resumed after September 11.... Walls, 418 F.Supp.2d at 963-64.

While it is undoubtedly true that Judge Wittenberg had alternatives to a mistrial, the Supreme Court has never required that a judge consider other options when “the record provides sufficient justification for the state-court ruling.” Washington, 434 U.S. at 516-17, 98 S.Ct. 824.

Washington's discussion of such considerations as the manner in which the trial court exercised its discretion (i.e., with or without deliberations and consideration of alternatives) is not mere dicta, but neither did the court hold that a declaration of mistrial without deliberate consideration of alternatives is necessarily an abuse of discretion. As Washington makes clear, we owe a high degree of deference to a trial judge’s assessment that the jury’s ability to render a verdict uninfluenced by improper considerations has been compromised.

The case before us is unusual to the extent that the perceived improper taint came from outside the courthouse. Thus, one might argue that the deference that we usually accord to a trial judge’s assessment of potential prejudice should be reduced because he was in no better position to assess the threat than anyone else. As petitioner points out, another judge in the same courthouse elected to allow an ongoing trial to proceed.

Under the novel circumstances that existed that day, petitioner contends that Judge Wittenberg should first have explored less drastic alternatives, such as polling or making voir dire inquiry of the jury, before declaring a mistrial. While these considerations undeniably make this a close case, they do not mean that petitioner is entitled to the writ. As the district court candidly acknowledged, “no one ... suggests or has suggested that Judge Wittenberg behaved irrationally or irresponsibly.” Walls, 418 F.Supp.2d at 964.

Neither party contends that concern about the jury’s ability to focus on the evidence before it is not a legitimate consideration in the “manifest necessity” calculation. That “some trial judges might have proceeded with the trial,” suggesting that continuance was not strictly “necessary,” does not compel the conclusion that Judge Wittenberg’s decision was not an exercise of sound discretion or, much less, that its affirmance by the Ohio Court of Appeals was contrary to clearly established federal law. Washington, 434 U.S. at 511, 98 S.Ct. 824.

If we step back for a moment and review the events facing Judge Wittenberg, it is clear that his decision comported with Washington. He knew of the World Trade Center and Pentagon attacks, had been told that a plane carrying a bomb was heading towards his city, and had learned that the courthouse would be evacuated without knowing when it would reopen. Before declaring a mistrial, he considered the alternative course of instructing the jury to return the next day.

In the press of these unfolding events, however, he concluded— quite rationally, as the district court recognized — that the jury might not be able to devote its full attention to the evidence. The Ohio Court of Appeals’ affirmance of his declaration of a mistrial under these circumstances, grounded as it was on a concern about jury bias, is neither contrary to, nor an unreasonable application of, clearly established federal law as defined by any holding of the United States Supreme Court.

See Carey, 127 S.Ct. at 654 (“Given the lack of holdings from this court regarding ... conduct of the kind involved Ye, it cannot be said that the state court ‘unreasonably applied clearly established Federal law.’ ”). III. The judgment of the district court is reversed and the writ of habeas corpus is vacated. . In the alternative, AEDPA sanctions the issuance of the writ if the state-court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Neither party contends that the factual determinations in this case were unreasonable and our focus is therefore exclusively upon § 2254(d)(1). . The Ohio Supreme Court did not accept this case for review. State v. Walls, 99 Ohio St.3d 1435, 789 N.E.2d 1117 (2003) (table). . This concession distinguishes this case from the situation in Johnson v. Karnes, 198 F.3d 589 (6th Cir.1999), which petitioner relies heavily upon. In Johnson, we found that "the trial judge failed to act rationally, responsibly or deliberately, and thus failed to exercise sound discretion as required by Perez and its progeny.” Id. at 596. .

While the dissenting opinion alludes to the deferential standard of review mandated by AEDPA, it fails to identify any holding of the United States Supreme Court to which the Ohio Court of Appeals’ ruling is contrary or of which the Ohio Court of Appeals’ ruling is an unreasonable application. Instead, the dissent relies largely on Sixth Circuit decisions issued before the United States Supreme Court first made it clear in Williams that "clearly established federal law” is determined by the holdings of Supreme Court decisions.

Consequently, the dissent’s analysis, in our view, neglects the "principles of comity, finality and federalism” that AEDPA is designed to serve. Dennis v. Mitchell, 354 F.3d 511, 517 (6th Cir.2003) (quoting Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003)).