     Case: 17-20765      Document: 00514790377         Page: 1    Date Filed: 01/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-20765                   United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                     January 10, 2019
JOSEPH MONTANO,
                                                                       Lyle W. Cayce
              Petitioner - Appellant                                        Clerk


v.

STATE OF TEXAS,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-860


Before JONES, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       After three days of trial, a state court declared a mistrial in Joseph
Montano’s trial for theft from a non-profit. Montano now asserts through a
federal habeas petition under 28 U.S.C. § 2241 that he cannot be retried
without the Government violating the Double Jeopardy Clause of the United
States Constitution. We agree with the district court that Montano implicitly
consented to the mistrial and therefore AFFIRM.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 17-20765
                                        I.   Background
       The facts on this summary judgment appeal are largely undisputed. 1
Joseph Montano’s first state court trial for theft from a nonprofit organization
ended in a mistrial. The mistrial came after one of the Government’s witnesses
began unexpectedly making incriminating statements on cross-examination.
The state trial judge stopped the witness from testifying, called a recess, and
eventually sent the jury home for the day to return the next morning.
       The judge, Montano’s counsel, and the Government began conferring
about what to do. They decided the witness would need counsel and arranged
for a public defender to advise him. After the public defender left with the
witness, the judge raised the possibility that the witness would invoke his Fifth
Amendment right to silence. Montano’s counsel insisted that he needed to
cross-examine the witness. The judge and both sides then discussed possible
resolutions. Though the Government wanted only a short continuance, the
idea of a mistrial became the focus. During the discussion, the public defender
representing the witness returned and confirmed that the witness would
invoke the Fifth Amendment. Montano’s counsel maintained that he needed
to cross-examine the witness. At no point during the discussion did Montano’s
counsel object to a potential mistrial. Eventually, the trial judge concluded
that he would declare a mistrial. Montano’s counsel again did not object.
Although the court reporter did not transcribe all of these proceedings, this
recitation of facts was developed through testimony of those in attendance.
Montano has not cited any record evidence on appeal that contradicts this
timeline of events.



       1 We review de novo a district court’s grant of summary judgment, applying the same
standard as the district court. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017)
(citing Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)). We view
all evidence in the light most favorable to Montano, the non-moving party. See id. at 328–29.
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                                 No. 17-20765
      Before he could be tried again, Montano sought and was denied a pretrial
writ of habeas corpus in Texas state court; he argued that a second trial would
violate the Double Jeopardy Clause of the United States Constitution. The
petition challenging the denial of the pretrial habeas petition was refused on
appeal. The Texas Court of Criminal Appeals refused discretionary review
originally and on a motion for rehearing.
      Next, Montano filed a pretrial 28 U.S.C. § 2241 habeas petition in federal
court, again asserting that retrial would violate his Double Jeopardy Clause
rights. The State moved to dismiss the § 2241 petition arguing, among other
things, that the petition was premature because Montano did not exhaust his
state court remedies. The district court agreed issued a memorandum and
order dismissing the § 2241 petition. On appeal, we reversed the dismissal and
remanded to the district court to address the merits. Montano v. Texas, 867
F.3d 540, 546-47 (5th Cir. 2017). We concluded, among other things, that the
record at that time was not sufficiently developed to allow consideration in the
first instance of whether Montano impliedly consented to the mistrial. Id.
      On remand, the State filed a motion for summary judgment arguing that
Montano consented to the mistrial and that the mistrial was a manifest
necessity. The district court granted the motion for summary judgment and
denied Montano’s § 2241 petition. Montano timely filed a notice of appeal.
                                  II.   Discussion
      Montano is not entitled to a writ of habeas corpus because he has not
identified any potential Double Jeopardy Clause violation. Once a criminal
defendant’s trial has begun, the trial court may not declare a mistrial except
under certain circumstances; otherwise, re-trying the defendant violates the
Double Jeopardy Clause. United States v. Palmer, 122 F.3d 215, 218 (5th Cir.
1997). One of the exceptions to that general rule is when a defendant consents
to a mistrial. Id. Consent can be either express or implied. Id.
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                                  No. 17-20765
      Only implied consent is relevant to this case. “If a defendant does not
timely and explicitly object to a trial court’s sua sponte declaration of mistrial,
that defendant will be held to have impliedly consented to the mistrial and
may be retried in a later proceeding.”        Palmer, 122 F.3d at 218.        “The
determination of whether a defendant objected to a mistrial is made on a case-
by-case basis, and the critical factor is whether a defendant’s objection gave
the court sufficient notice and opportunity to resolve the defendant’s concern.”
United States v. El-Mezain, 664 F.3d 467, 559 (5th Cir. 2011) (citing United
States v. Fisher, 624 F.3d 713, 717 (5th Cir. 2010)).
      Montano never objected to a mistrial, despite multiple opportunities, and
he thus impliedly consented. Montano contends that his counsel objected to a
mistrial by telling the trial court that he needed to be able to cross-examine
the witness. But that was not an objection to a mistrial; it was further support
for it. The witness had already begun to testify on behalf of the Government
but then began invoking his Fifth Amendment right. Montano would not be
able to meaningfully cross-examine the witness so long as the witness invoked
the Fifth Amendment. The trial court’s decision to declare a mistrial was thus
driven by Montano’s concerns. Montano had the opportunity to object to the
trial court’s course and to clarify that he preferred continuing the case rather
than having a mistrial. Indeed, the Government did just that, but Montano
never raised such a concern either during the long afternoon where the mistrial
concept was first raised or the next morning before the jury was dismissed.
Because Montano did not object to the mistrial despite being given the
opportunity to do so, he impliedly consented to the mistrial and the Double
Jeopardy Clause does not bar retrial. See El-Mezain, 664 F.3d at 559; Palmer,
122 F.3d at 218.
      Consequently, we AFFIRM the district court.


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