                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3409
                                    ___________

Evelyn Louise Long,                      *
                                         *
                    Appellant,           * Appeal from the United States
                                         * District Court for the District
      v.                                 * of Minnesota.
                                         *
Hubert H. Humphrey, III,                 *
                                         *
                    Appellee.            *
                                    ___________

                            Submitted: May 14, 1999
                                Filed: July 14, 1999
                                   ___________

Before McMILLIAN, BRIGHT, and FAGG, Circuit Judges.
                            ___________

FAGG, Circuit Judge.

      Evelyn Louise Long appeals the denial of her petition for writ of habeas corpus.
See 28 U.S.C. § 2254 (1996). We reverse.

      Long stabbed her husband during a quarrel. At Long’s state court jury trial, the
main issue was whether Long acted in self-defense. Long’s husband testified Long
attacked him without provocation as he sat in a chair. On the other hand, Long testified
her husband pushed her roughly and she retreated to the kitchen, grabbed a knife, and
stabbed her husband when he came after her. The prosecutor called a police officer to
rebut Long’s testimony that her husband was standing when she stabbed him. The
officer had interviewed Long after her arrest and summarized the encounter in a written
report disclosed to the defense before trial. The report stated Long “was lying on the
sofa when her husband pushed her, she then got up[,] went into the kitchen and
returned to the living room area with a knife, her husband then told her ‘go ahead and
do it’, L[ong] then stabbed her husband who was sitting down.” Shortly before the
officer took the stand, he informed the prosecutor the interview had also been taped.
The prosecutor promptly notified Long’s counsel and the court outside the jury’s
presence and also explained the tape contained “two small points” not included in the
officer’s report – first, Long said she went to the bathroom before going into the
kitchen, a point she denied at trial, and, second, Long said her husband had been
drinking at the time of the stabbing, a circumstance about which Long did not testify.

       Long initially moved for a mistrial. In response, the prosecutor offered to either
waive rebuttal, play the entire tape and limit the officer’s testimony to foundational
issues, or not play the tape and limit the officer’s testimony to the written report. The
court instructed Long to listen to the tape and discuss her options with her counsel.
After doing so, Long withdrew the mistrial motion, stating the “jury was picked by the
defense” and she wanted “to have the jury hear the tape and let them evaluate it in the
way that they think . . . [they] need to.” The court acknowledged Long was making a
knowing, intelligent, and voluntary waiver of her objections to the tape’s late
disclosure, but stated, “I’m not willing to put you in that position.” Despite Long’s
desire to proceed, the court declared a mistrial on its own motion.

       When the state sought to retry Long, Long moved to bar retrial as a violation of
double jeopardy, arguing no manifest necessity required the trial court to grant a
mistrial over her objection. The trial court denied Long’s motion. After exhausting her
state court remedies, Long filed a petition for writ of habeas corpus, which the federal
district court denied.




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       On appeal, Long contends the district court should have granted her habeas
petition because the trial court’s declaration of a mistrial over her objection “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) (1996). We agree.

       Because § 2254(d)(1) directs this court to grant Long’s petition only if the trial
court’s decision was contrary to or involved an unreasonable application of clearly
established Supreme Court precedent, we must first identify the controlling case law.
When a trial court orders a mistrial over the defendant’s objection, the Supreme Court
has stated double jeopardy bars a retrial unless there was manifest necessity for the
mistrial. See Arizona v. Washington, 434 U.S. 497, 503-05 (1978); United States v.
Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). The Court has cautioned that manifest
necessity is a high degree of necessity, see Washington, 434 U.S. at 506, and that the
power to declare a mistrial over the defendant’s objection should be exercised only
“under urgent circumstances, and for very plain and obvious causes.” Perez, 22 U.S.
(9 Wheat.) at 580; accord Washington, 434 U.S. at 506 n.18.

       Given the existence of clearly established Supreme Court precedent governing
Long’s claim, we must next decide whether the trial court’s decision was “contrary to”
or an “unreasonable application” of that precedent. See § 2254(d)(1). These terms are
undefined in § 2254, and, although we have not addressed the issue, their meaning and
application have been the subject of much debate among other federal courts of
appeals. See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 885-91 (3d Cir.
1999) (en banc), petition for cert. filed, (U.S. June 22, 1999) (No. 98-2050); Davis v.
Kramer, 167 F.3d 494, 500 (9th Cir. 1999), petition for cert. filed, 67 U.S.L.W. 3570
(U.S. Mar. 8, 1999) (No. 98-1427); O’Brien v. Dubois, 145 F.3d 16, 21-25 (1st Cir.
1998); Green v. French, 143 F.3d 865, 869-73 (4th Cir. 1998), cert. denied, 119 S. Ct.
844 (1999); Neelley v. Nagle, 138 F.3d 917, 922-24 (11th Cir. 1998), cert. denied, 119
S. Ct. 811 (1999); Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. 1996) (en banc),

                                          -3-
rev’d on other grounds, 521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751, 767-
69 (5th Cir. 1996). Because Long’s appeal does not present a pure question of law and
because the manifest necessity standard cannot be applied mechanically to require a
particular result in Long’s case, see Washington, 434 U.S. at 506, the parties concede
the trial court’s decision was not “contrary to” established Supreme Court precedent
under any circuit’s test. See, e.g., Drinkard, 97 F.3d at 768 (“contrary to” existing
precedent if state court made error of pure law); O’Brien, 145 F.3d at 25 (“contrary to”
if controlling case law requires different outcome either because of factual similarity
to state case or because general federal rules require particular result in particular case).

        Thus, the resolution of Long’s appeal hinges on the unreasonable application
prong of § 2254(d)(1). The circuits also differ about what is unreasonable in the
application of the Court’s precedent. Some circuits hold a state court’s decision is
unreasonable if the state court applied controlling precedent in a manner all reasonable
jurists would agree was unreasonable, see Green, 143 F.3d at 870; Neelley, 138 F.3d
at 924; Drinkard, 97 F.3d at 769, while other circuits consider whether the decision is
“so offensive to existing precedent, so devoid of record support, or so arbitrary, as to
indicate that it is outside the universe of plausible, credible outcomes,” O’Brien, 145
F.3d at 25; accord Hall v. Washington, 106 F.3d 742, 749 (7th Cir.), cert. denied, 118
S. Ct. 264 (1997); cf. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1999)
(combining these two tests), cert. denied, 67 U.S.L.W. 3654 (U.S. June 14, 1999) (No.
98-1665). The Third Circuit has rejected both of these tests, stating that the reasonable
jurist test discourages the granting of relief by requiring federal habeas courts to hold
the state court acted in a way no reasonable jurist would under the circumstances and
that the outside-the-universe-of-plausible-outcomes test excludes all but those decisions
so off the mark that they approach judicial incompetence. See Matteo, 171 F.3d at
889. Instead, the Third Circuit holds “[t]he federal habeas court should not grant the
petition unless the state court decision, evaluated objectively and on the merits, resulted
in an outcome that cannot reasonably be justified under existing Supreme Court
precedent.” Id. at 890.

                                            -4-
        We find the Third Circuit’s approach persuasive. Accordingly, we must
objectively evaluate whether the trial court’s declaration of a mistrial resulted in an
outcome that cannot reasonably be justified under the manifest necessity standard.
“‘To the extent that inferior federal courts have decided factually similar cases,
reference to those decisions is appropriate in assessing the reasonableness . . . of the
state court’s treatment of the contested issue.’” Matteo, 171 F.3d at 890 (quoting
O’Brien, 145 F.3d at 25). In making this evaluation, our “mere disagreement with the
[trial] court’s conclusions is not enough to warrant habeas relief.” Id.

      In Long’s case, the trial court stated it declared a mistrial because:

      1) [Long] credibly denied any memory of her statement to [the police
      officer]; 2) [Long] had testified without having had the opportunity to
      refresh her memory by listening to the tape; 3) [Long’s] taped statement
      both supported and contradicted testimony of both [Long] and the other
      witnesses; 4) to have gone forward with the trial without using the tape
      would have deprived both parties of crucial and significant evidence
      supporting their respective cases; 5) to have gone forward with the trial
      with the tape being played for the jury would have unfairly prejudiced
      [Long] because regardless of any further explanation or instruction, the
      jury would have been left with the impression that [Long] had lied in her
      earlier testimony -- thus injecting, unfairly, a new element into the jury’s
      deliberations.

In evaluating whether manifest necessity required this mistrial, “the critical inquiry is
whether less drastic alternatives were available,” United States v. Shafer, 987 F.2d
1054, 1057 (4th Cir. 1993); accord United States v. Givens, 88 F.3d 608, 612-14 (8th
Cir. 1996); United States v. Dixon, 913 F.2d 1305, 1313-15 (8th Cir. 1990), and they
were. Long’s counsel and the prosecutor presented the trial court with a variety of
mutually acceptable alternatives to mistrial. Of particular significance among the
various available options were the prosecutor’s offer to waive rebuttal altogether and
her alternative offer to limit her examination to the officer’s properly disclosed written


                                           -5-
report, which included Long’s earlier consistent and inconsistent statements and which
would have allowed the prosecutor to rebut Long’s testimony without allowing the
prosecutor to benefit from the tape’s improper disclosure. Additionally, Long was
clearly willing to waive any objection to the tape’s late disclosure or to any prejudice
resulting from playing the entire tape to the jury. See Dixon, 913 F.2d at 1312 n.3,
1315; Shafer, 987 F.2d at 1058. Any of these alternatives would have alleviated the
tape’s potential prejudice to Long and allowed the trial to continue. Given the range
of available and viable alternatives to mistrial, the trial court simply was not faced with
the sort of urgent circumstances or the high degree of necessity contemplated by the
manifest necessity standard. See Givens, 88 F.3d at 612-14; Dixon, 913 F.2d at 1313-
14; Shafer, 987 F.2d at 1057-59. Thus, we conclude the trial court’s decision,
evaluated objectively and on the merits, was an unreasonable application of clearly
established Supreme Court precedent.

     Because no manifest necessity justified the trial court’s declaration of a mistrial,
Long’s retrial is barred by double jeopardy. We reverse the district court’s order and
remand with instructions to grant the writ of habeas corpus.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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