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High v. Napier

United States District Court, D. Arizona

May 1, 2019

Harold Lee High, Jr., Petitioner,
Mark Napier, et al., Respondents.



         This matter was referred to Magistrate Judge Lynnette C. Kimmins, pursuant to Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). On February 27, 2019, Magistrate Judge Kimmins issued a Report and Recommendation (R&R). She recommends that the Court grant the Petition for Writ of Habeas Corpus (the Petition) based on a double jeopardy violation (Claim 2). She recommends the Court dismiss Claims 1, 3, and 4 as premature. The Court accepts and adopts the Magistrate Judge's R&R as the findings of fact and conclusions of law of this Court as to the dismissal of Claims 1, 3, and 4, but rejects the recommendation as to Claim 2.[1] The Court finds that the Double Jeopardy Clause in the Fifth Amendment of the United States Constitution was not violated because the Defendant's attorney requested the mistrial.


         The duties of the district court in connection with a R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.'” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).

         This Court's ruling is a de novo determination as to those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc). To the extent that no objection has been made, arguments to the contrary have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the R&R), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation)).

         The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 636(b)(1), they had 14 days to file written objections. See also, Fed.R.Civ.P. 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). The Court has considered the objections filed by the Respondent, the Petitioner's Reply, and the parties' briefs considered by the Magistrate Judge in deciding the Petition.


         The objection filed by the Defendant was not argued to the Magistrate Judge, but the Court considers it here, and the Petitioner has been afforded an opportunity to Reply.

         As explained in the R&R, the Petitioner, defendant High, objected in open court when his attorney asked for a mistrial on the second day of his trial. The jury had been empaneled on day one, a Wednesday. The second day of trial, when counsel arrived to commence presentation of the evidence, Defendant's attorney informed the trial judge that he was too sick to proceed to represent the defendant at trial and expressly asked for a mistrial. When the court declared in open court it was going to declare a mistrial at the request of defense counsel, Defendant High objected on speedy trial grounds. He noted that there were two attorneys appointed to represent him and asked that the other attorney proceed. The second attorney explained that he was only present for training purposes, and he was not prepared to conduct the trial. The court cited extraordinary circumstances, found delay was indispensable to the interests of justice, and declared the mistrial on a Thursday. (R&R (Doc. 40) at 1-2.)

         A status conference was set for the following Monday, whereat Defendant High argued that a new trial would violate his double jeopardy rights, that lead-counsel or the second attorney should have proceeded with the trial. “High further argued that he did not consent to the mistrial and he was not given sufficient time to dispute the request.” (R&R (Doc. 40) (citing TR (Doc. 29) at 22). Counsel explained he understood why his client had objected to the request for a mistrial but unfortunately counsel's illness was very unforeseen, and it was more than a common cold. Counsel did not believe he could ethically file a motion based on double jeopardy because defense counsel requested the mistrial, and it would essentially be tricking the court to say, “Judge, a-ha, we got you, now it has to be double jeopardy, that jeopardy attaches, since it was at our request.” (TR (Doc. 29) at 21.)

         The trial court summed up the situation as being where the main trial attorney had said on the record that he was ill, nauseous, had a headache, and could not go forward effectively to represent defendant High at trial. The second attorney had said he was not prepared to take up the trial on the fly and effectively represent the defendant. In such circumstances, the court had to act to protect High's right to a fair trial or the defendant could say: my main attorney said he was too sick to represent me effectively and the other attorney said he was unprepared. The Court noted that his attorneys had not waived his speedy trial rights, but the Court had found extraordinary circumstances[2] to exempt the delay for speedy trial purposes. The Court found it had had no choice but to grant defense counsel's request for the mistrial. (TR (Doc. 29) at 22-23.)

         The court reasoned that it would not entertain High's pro se double jeopardy motion to dismiss because he was represented by counsel. (R&R (Doc. 2 (citing TR (Doc. 29) at 18).

         The Magistrate Judge did not consider this “catch 22”[3] situation described by the trial judge because it was not presented to her. She focused on the double jeopardy protection of a “defendant's right to have his ‘trial completed by a particular tribunal, '” (R&R (Doc. 40) at 6 (quoting Arizona v. Washington, 434 U.S. 497, 504 (1978), and the Fifth Amendment's bar to retrial of a defendant unless the trial court's declaration of a mistrial, over the defendant's objection, was due to ‘manifest necessity.'” She concluded based on the record that the defendant objected to his attorney's request for a mistrial that the trial court's failure to make a finding of manifest necessity doomed the mistrial. Noting the mistrial was called on Thursday and the status conference was held on Monday, with counsel well and in attendance, she noted that “nothing in the record suggest[ed] that, after a short continuance, a full and fair trial could not have been held with the first jury empaneled.” (R&R (Doc. 40) at 6-7.)

         With the advantage of the R&R briefs, this Court answers the question not addressed by the Magistrate Judge. Was the mistrial granted at the request of the defendant? “‘If a case is dismissed after jeopardy attaches but before the jury reaches a verdict, a defendant may be tried again for the same crime only in two circumstances: (1) if he consents to the dismissal; or (2) if the district court determines that the dismissal was required by ‘manifest necessity.'” United States v. Chapman, 524 F.3d 1073, 1081 (9th Cir. 2008) (quoting United States v. Bonas, 344 F.3d 945, 948 (9th Cir. 2003)). The Magistrate Judge analyzed the Petition under the second prong. This Court looks at the first: “When a mistrial is the result of a defendant's request and not the result of intentional prosecutorial provocation, ‘the manifest necessity' standard has no place in the application of the Double Jeopardy Clause.” (Objection (Doc. 42) at 4 (citing Oregon v. ...

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