                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 15a0122n.06

                                                No. 14-1039


                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

DOUGLAS EUGENE CAMP,                                            )
                                                                                                FILED
                                                                                        Feb 10, 2015
                                                                )
                                                                                    DEBORAH S. HUNT, Clerk
        Petitioner-Appellant,                                   )
                                                                )
v.                                                              )        ON APPEAL FROM THE
                                                                )        UNITED STATES DISTRICT
MARY BERGHUIS, Warden,                                          )        COURT FOR THE EASTERN
                                                                )        DISTRICT OF MICHIGAN
        Respondent-Appellee.                                    )
                                                                )
                                                                )



BEFORE:          BATCHELDER and KETHLEDGE, Circuit Judges; COLLIER, District
                 Judge.

        ALICE M. BATCHELDER, Circuit Judge. In 2007, a Lenawee County, Michigan

grand jury indicted Douglas Camp for fifteen counts of criminal sexual conduct stemming from

the alleged sexual abuse of his twelve-year-old adopted nephew. In a separate case in Livingston

County, Michigan, a jury had acquitted Camp of six charges of criminal sexual conduct arising

from unrelated conduct but concerning the same nephew and the nephew’s eleven-year-old foster

brother. During the Lenawee County trial, the prosecution’s first witness mentioned the trial in

Livingston County. Defense counsel immediately requested a bench conference in order to

discuss granting a mistrial. After a short colloquy, the trial judge granted a mistrial. In a new

trial, a jury found Camp guilty of one count of criminal sexual conduct. On appeal, the Michigan



 The Honorable Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 14-1039
Camp v. Berghuis

Supreme Court affirmed the conviction, holding that Camp had consented to the mistrial and

thus the new trial did not violate the double jeopardy prohibition of the Fifth Amendment. Camp

filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254; the district court denied

relief but granted a certificate of appealability as to the double-jeopardy claim. For the reasons

that follow, we AFFIRM the judgment of the district court.

                                                 I.

        The Court of Appeals of Michigan accurately summarized the relevant facts underlying

Camp’s petition:

                 Defendant was charged with ten counts of first-degree criminal sexual
        conduct (CSC I) and five counts of CSC II. The victim of the 14 charges was
        defendant’s 12-year-old adopted nephew, AK. The sexual abuse occurred during
        a camping trip in Lenawee County. In a separate case in Livingston County,
        defendant was charged with four counts of CSC I and two counts of CSC II. The
        victims of these 6 charges were AK and AK’s 11-year-old foster brother, SH.
        The Livingston County case proceeded to trial, and a jury acquitted defendant of
        the six charges.
                 The present case then went to trial before a jury. The first witness was
        Tammie Kurth, AK’s adopted mother and defendant’s sister. She testified that
        one evening, a few months after defendant’s and AK’s camping trip, she
        discovered AK and SH, in their bedroom, naked from the waist down, “messin’
        around.” Kurth sent her husband to speak to AK and SH, and AK disclosed that
        he had learned the behavior from defendant. Kurth drove to defendant’s house,
        where she “asked him what he’d been doin’ to [her] boys.” Defendant denied
        doing anything improper, but Kurth kept telling defendant “that they [AK and
        SH] said he had been molesting them.”
                 Kurth testified that, after reporting the abuse to SH’s guardian ad litum,
        she contacted a lawyer. The lawyer took her, along with AK and SH, to the local
        police department. The prosecutor then asked Kurth, “After a police report had
        been made, what, if anything happened?” Kurth replied, “Well, it eventually went
        to trial in Livingston County. I don’t—.”

People v. Camp, No. 285101, 2009 WL 2974772, at *1 (Mich. Ct. App. Sept. 17, 2009).

        Upon hearing Kurth’s statement about the Livingston County trial, defense counsel

petitioned the judge to be heard outside the presence of the jury because “I’m [sic] wanna move

for a mistrial” or, as an alternative, “we can announce to the jury and you can let me introduce

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Camp v. Berghuis

the not guilty verdict.” The trial judge sent the jury back to the jury room, took a recess, and

reconvened proceedings outside the presence of the jury. The bench conference began with the

trial judge asking defense counsel what he wanted since he “made the objection.” Defense

counsel requested that the judge admit a certified copy of the not guilty verdict in the Livingston

County case or, in the alternative, grant a mistrial “if the Court’s not inclined to grant that

request.” Allowed to respond, the prosecutor argued that Kurth’s statement was not responsive

to her question and moved for a mistrial of her own. The trial judge immediately denied the

prosecution’s motion for a mistrial.

        The trial judge gave defense counsel the “last voice” on the issue. Defense counsel asked

the court to “allow the admission of the verdict as to the complainants in that case, or in the

alternative a dismissal . . . of all the charges in both cases” because “we can’t unring that bell.”

The trial judge agreed that the bell could not be unrung and concluded: “These charges are very

serious. I think that we should have a clean trial. I’m going to grant a mistrial.” Defense

counsel never objected to the grant of a mistrial.

        Rather than appeal the decision, defense counsel waited until the judge had scheduled the

new trial and then filed a motion to dismiss based on double jeopardy. At a hearing concerning

the motion to dismiss, defense counsel took exception to the prosecution’s claim that the defense

had consented to the mistrial, noting that what he had really wanted was what he requested just

before the judge declared a mistrial—the not-guilty verdict admitted into evidence or the charges

dropped. Regardless, the trial judge denied the motion to dismiss, holding both that the defense

had consented to the mistrial and that manifest necessity required the mistrial. At the conclusion

of the new trial, a new jury convicted Camp of one count of criminal sexual conduct in the




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Camp v. Berghuis

second degree.     The trial judge sentenced Camp to fifty-seven months to fifteen years’

imprisonment.

        After his conviction, Camp appealed to the Court of Appeals of Michigan, arguing, inter

alia, that the second trial violated the Double Jeopardy Clause because jeopardy had attached

when the initial jury was sworn and he had not consented to the mistrial. The Court of Appeals

reversed Camp’s conviction, finding that he had not consented to the mistrial and the prosecutor

had not shown a manifest necessity for the mistrial. Camp, 2009 WL 2974772 at *1. The

Michigan Supreme Court reversed in a paragraph-long order. People v. Camp, 781 N.W.2d 803

(Mich. 2010). The court reasoned that “the trial court did not clearly err in finding that the

defendant consented to the mistrial declared by the court” and “[w]here a defendant consents to a

mistrial, double jeopardy considerations do not apply.” Id. at 803 (citing United States v. Dinitz,

424 U.S. 600, 607 (1976)).

        On remand, the Court of Appeals of Michigan considered several substantive issues

raised but not decided in Camp’s original appeal. The court denied relief on all of those issues,

which are not relevant for this case. People v. Camp, No. 285101, 2010 WL 3238924, at *1

(Mich. Ct. App. Aug. 17, 2010). The Michigan Supreme Court denied Camp’s application for

leave to appeal. People v. Camp, 794 N.W.2d 41, 41 (Mich. 2011).

        Camp filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. He raised claims

concerning the Double Jeopardy Clause, the Confrontation Clause and ineffective assistance of

counsel. The district court rejected all of his claims, but granted a certificate of appealability on

Camp’s double-jeopardy claim. Camp appealed on the double-jeopardy issue.




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Camp v. Berghuis

                                                II.

        The district court held that “the Michigan Supreme Court’s conclusion that Petitioner

consented to the mistrial was a reasonable determination of the facts and a reasonable application

of the law” because defense counsel had requested a mistrial twice and did not object to the

mistrial once the trial court granted one. The standard of review, however, is even less stringent:

we do not need to determine that the Michigan Supreme Court’s determination was reasonable in

order to deny habeas relief; instead, we must simply find that it was not unreasonable. See

O’Neal v. Bagley, 743 F.3d 1010, 1019–20 (6th Cir. 2013). We hold that the Michigan Supreme

Court’s determination that Camp consented to the mistrial is not unreasonable.

                                                A.

        This court reviews de novo a district court’s legal conclusions and mixed questions of

law and fact, and reviews its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416

(6th Cir. 1999). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal

court may not grant a habeas petition with respect to any claim that was adjudicated on the

merits in the state courts unless the adjudication of the claim “resulted in a decision that 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). Under the

“contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a

conclusion opposite to that reached by the Supreme Court on a question of law, or if the state

court reaches a decision different from that of the Supreme Court on a set of materially

indistinguishable facts.   Williams v. Taylor, 529 U.S. 362, 412–13 (2000).            Under the

“unreasonable application” clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from the Supreme Court’s decisions but



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Camp v. Berghuis

unreasonably applies that principle to the facts of the petitioner’s case. Id. “In order for a

federal court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the

state court’s decision must have been more than incorrect or erroneous”; it must have been

“objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21 (internal quotation marks

omitted). For factual matters, a district court may not grant a habeas petition unless the state

court’s adjudication “resulted in a decision that 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).

        To obtain habeas relief, “a state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011). This standard, the

Supreme Court recently reminded this circuit, is “difficult to meet.” White v. Woodall, 134 S. Ct.

1697, 1702 (2014) (quoting Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)) (internal

quotation marks omitted).

                                                 B.

        The Constitution prohibits any person from being subject “for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. Jeopardy attaches when a jury

panel is seated and sworn. Crist v. Bretz, 437 U.S. 28, 38 (1978). “Once jeopardy attaches,

prosecution of a defendant before a jury other than the original jury . . . is barred unless (1) there

is a ‘manifest necessity’ for a mistrial or (2) the defendant either requests or consents to a

mistrial.” Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996).




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        Camp contends that the Michigan Supreme Court’s holding that he consented to the

mistrial was an unreasonable determination of the facts and an unreasonable application of

Dinitz. In that case, the Court noted that “whether under the Double Jeopardy Clause there can

be a new trial after a mistrial has been declared without the defendant’s request or consent

depends on whether there is a manifest necessity for the (mistrial) or the ends of public justice

would otherwise be defeated.”        424 U.S. at 606–07 (internal quotation marks omitted).

“Different considerations obtain, however, when the mistrial has been declared at the defendant’s

request.” Id. at 607. When a defendant must determine whether or not to request or consent to a

mistrial in response to judicial or prosecutorial error, “[t]he important consideration, for purposes

of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be

followed in the event of such error.” Id. at 609.

        “[T]he United States Supreme Court has always required that consent to mistrial must be

determined based on a ‘totality of the circumstances.’” Washington v. Jarvis, 137 F. App’x 543,

554 (4th Cir. 2005); see also id. at 552 (citing United States v. Sanford, 429 U.S. 14, 16 (1976));

United States v. Gantley, 172 F.3d 422, 428–29 (6th Cir. 1999) (“[T]his circuit simply insists on

an especially careful examination of the totality of circumstances, to ensure a defendant’s

consent is not implied when there is a substantial question of whether the defendant did, in fact,

consent.”).

        Reasonable jurists—namely, this court and our sister circuits—have found two actions by

a defendant significant in assessing implied consent.          First, courts have highlighted the

defendant’s choice to make a motion for a mistrial and not withdraw it before the trial judge’s

granting of a mistrial. See Tinsley v. Million, 399 F.3d 796, 812 (6th Cir. 2005); Earnest v.

Dorsey, 87 F.3d 1123, 1129 (10th Cir. 1996); United States v. Goldstein, 479 F.2d 1061, 1067



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Camp v. Berghuis

(2d Cir. 1973). Second, courts have emphasized that a failure to object to the mistrial once

granted, while not dispositive, can contribute to implied consent. See Gantley, 172 F.3d at 429;

Washington, 137 F. App’x at 552.

        Camp argues that by citing to Dinitz but failing to recognize that Camp did not maintain

primary control over the course to be followed the Michigan Supreme Court both unreasonably

determined that he had consented to the mistrial and unreasonably applied clearly established

Federal law. For support, he highlights defense counsel’s final request—that the not-guilty

verdict be admitted or, in the alternative, that all charges be dropped—and notes that it did not

include granting a mistrial as an option. He ignores, however, that defense counsel initially

moved for a mistrial, reiterated his request one more time during the bench conference, never

withdrew the motion, and never objected to the mistrial once granted. Camp’s situation thus

evinces both of the factors reasonable jurists have found significant to implied consent.

Accordingly, we hold that the Michigan Supreme Court was not objectively unreasonable when

it determined that, under the totality of the circumstances, Camp consented to the mistrial and

thus retained primary control over the course to be followed once the prosecutorial error became

apparent, and that the granting of a new trial comported with the requirements of the Double

Jeopardy Clause.

        Finally, Camp argues that the Michigan Supreme Court disregarded clearly established

law by reviewing the trial court’s consent finding for clear error. But neither Dinitz nor any

other Supreme Court decision says that appellate courts must review such a finding de novo.

Thus, the district court properly denied Camp’s habeas petition.




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Camp v. Berghuis

                                            III.

        For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief on

Camp’s double-jeopardy claim.




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