                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 19 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOSEPH CARL STANLEY,                              No. 13-56172

              Petitioner - Appellant,             D.C. No. 2:12-cv-09569-JAK-SH

  v.
                                                  MEMORANDUM*
LEROY D. BACA, Sheriff,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                      Argued and Submitted February 4, 2014
                               Pasadena, California

Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.

       Joseph Carl Stanley appeals a district court order dismissing his pretrial

petition for a writ of habeas corpus, in which he asserted a double jeopardy claim.

The district court dismissed Stanley’s petition under the abstention doctrine of

Younger v. Harris, 401 U.S. 37 (1971). We have jurisdiction pursuant to 28



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1291 and § 2253(c). We vacate the district court order dismissing

Stanley’s habeas petition, and we remand for consideration of that petition on the

merits.1

      Though the Younger abstention doctrine generally counsels federal courts to

abstain from adjudicating challenges to criminal prosecutions pending in state

courts, “federal courts will entertain pretrial habeas petitions that raise a colorable

claim of double jeopardy.” Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.

1992). “A double jeopardy claim is colorable if it has ‘some possible validity.’”

United States v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005) (quoting United States

v. Price, 314 F.3d 417, 420 (9th Cir. 2002)). Thus, if Stanley’s double jeopardy

claim has some possible validity, the district court erred in dismissing that claim

under Younger abstention.

      Stanley’s double jeopardy claim has some possible validity. “It is long

established that ‘[c]riminal defendants have a right to have the jury first empaneled

to try them reach a verdict.’” United States v. Bonas, 344 F.3d 945, 947-48 (9th

Cir. 2003) (alteration in original) (quoting United States v. Bates, 917 F.2d 388,

392 (9th Cir. 1990)). At Stanley’s first trial, twelve jurors and four alternates had



      1
       Pretrial habeas petitions are governed by 28 U.S.C. § 2241 rather than
§ 2254. See Stow v. Murashige, 389 F.3d 880, 882 (9th Cir. 2004).
                                            2
already been empaneled and sworn when the state trial court declared a mistrial.

Thus, the Double Jeopardy Clause barred Stanley’s retrial unless the state trial

court’s declaration of mistrial was supported by manifest necessity or the

defendant’s consent, either express or implied. See United States v. You, 382 F.3d

958, 964 (9th Cir. 2004).2 Mistrial was not supported by manifest necessity or

express consent, and on the present record we are unable to determine whether

mistrial was supported by implied consent.

      Mistrial was not supported by manifest necessity. “Once the jury is

empaneled and sworn . . . . even severe hardship may not be sufficient to justify

excusing an empaneled juror, particularly if doing so will result in a mistrial.”

Bonas, 344 F.3d at 950. “The defendant’s right to proceed to verdict with the jury

first selected can only be set aside if the [trial] judge reasonably concludes that the

hardship is so severe that it fatally undermines the juror’s ability to discharge his

responsibilities diligently and impartially.” Id. In this case, there is no evidence

that the state trial court concluded that jurors’ asserted hardships had fatally

undermined their ability to discharge their responsibilities diligently and

impartially. No such conclusion would have been reasonable. On the contrary,


      2
        Despite Respondent’s contrary suggestion at oral argument, manifest
necessity and consent are two separate and independent inquiries. See, e.g., Bates,
917 F.2d at 392.
                                           3
even if the state trial court was justified in excusing four jurors, that court was still

left with twelve jurors sworn to serve diligently and impartially, who were ready to

proceed to trial on November 9, 2011—just two days later.

      Because mistrial was unsupported by manifest necessity, and because there

is no indication that Stanley expressly consented to a mistrial, the Double Jeopardy

Clause barred Stanley’s retrial unless mistrial was supported by implied consent.

On the present record, we are unable to determine whether mistrial was supported

by implied consent. For example, it is unclear how much time passed between the

dismissal of the jury and the declaration of mistrial, whether the jury could have

been recalled had an objection been lodged immediately upon declaration of

mistrial, and whether defense counsel heard the state trial court refer to an

agreement that trial would not go forward without at least one alternate juror. On

remand, the district court should determine whether “the circumstances positively

indicate [Stanley’s] willingness to acquiesce in the mistrial order.” Weston v.

Kernan, 50 F.3d 633, 637 (9th Cir. 1995) (citation and internal quotation marks

omitted).

      We VACATE the district court order dismissing Stanley’s habeas petition,

and REMAND for the district court to determine, after a hearing, whether mistrial

was supported by implied consent. Each party shall bear its own costs on appeal.


                                            4
VACATED and REMANDED.




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