11-4486-cv
Marte v. Vance
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of May, two thousand twelve.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
----------------------------------------------------------------------
EDDY MARTE, LUIS MARTE,
                                 Petitioners-Appellants,

                          v.                                             No. 11-4486-cv

CYRUS R. VANCE, JR., District Attorney for the County
of New York.
                                 Respondent-Appellee.*
----------------------------------------------------------------------

APPEARING FOR APPELLANTS:                        DAVID SEGAL, Esq., New York, New York for
                                                 Eddy Marte.

                                                  ROBERT BLOSSNER, Esq., New York, New
                                                  York, for Luis Marte.

APPEARING FOR APPELLEES:                          MARTIN J. FONCELLO (Eleanor J. Ostrow, on
                                                  the brief), Assistant District Attorneys, for Cyrus
                                                  R. Vance, Jr., District Attorney, New York
                                                  County, New York, New York.

          *
              The Clerk of Court is directed to amend the caption as shown above.

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       Appeal from a judgment of the United States District Court for the Southern District

of New York (John F. Keenan, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment denying habeas relief pursuant to 28 U.S.C. § 2241, entered

on October 18, 2011, is AFFIRMED and the order staying state criminal proceedings

pending appeal entered on November 22, 2011, is VACATED.

       Eddy and Luis Marte appeal the denial of their habeas petition seeking to bar their

retrial by New York State on charges of attempted robbery as violating the Double Jeopardy

Clause. They submit that neither manifest necessity nor implied consent existed to justify

the declaration of a prior partial mistrial on the charges at issue so as to allow retrial. While

only one level of the New York courts to review the Martes’ double jeopardy challenge

found retrial justified by manifest necessity, all three have found implied consent. See Marte

v. Berkman, 16 N.Y.3d 874, 876, 925 N.Y.S.2d 388, 389 (2011); Marte v. Berkman, 70

A.D.3d 493, 493, 895 N.Y.S.2d 376, 377 (1st Dep’t 2010); People v. Marte, No. 2420/08

(N.Y. Sup. Ct. N.Y. Cnty. June 1, 2009). We assume the parties’ familiarity with the facts

and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

1.     Standard of Review

       We review the district court’s denial of the Martes’ habeas petition de novo. See

Lopez v. Terrell, 654 F.3d 176, 180 (2d Cir. 2011). Insofar as the parties dispute the district

court’s decision on a § 2241 petition to apply de novo review to the state courts’ ruling,

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rather than to accord the deference established by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, for § 2254 petitions,1

we need not resolve the matter because petitioners’ challenge fails even under de novo

review.

2.     Implied Consent

       When an accused consents to declaration of a mistrial, the Double Jeopardy Clause

does not bar retrial. See, e.g., United States v. Razmilovic, 507 F.3d 130, 140–41 (2d Cir.

2007). Such consent “need not be express, but may be implied from the totality of

circumstances attendant on a declaration of mistrial.” United States v. Goldstein, 479 F.2d

1061, 1067 (2d Cir. 1973). Indeed we have observed that “consent can be inferred where

defendant was afforded ‘minimal but adequate opportunity to object’ while mistrial was

being declared.” Maula v. Freckleton, 972 F.2d 27, 29 (2d Cir. 1992) (quoting Camden v.

Circuit Court of Second Judicial Circuit, 892 F.2d 610, 615 (7th Cir. 1989)).

       On de novo review of the totality of the circumstances, we conclude, as did the district

court, the New York Supreme Court, the Appellate Division, and the New York Court of

Appeals, that petitioners implicitly consented to the declaration of mistrial. After receiving

a note from the jury stating that it was at an impasse on certain counts, the trial judge voiced

his “inclination” to take a partial verdict and declare a mistrial as to the other charges.


       1
         Although petitioners originally brought their petition under 28 U.S.C. § 2254, the
district court converted the petition to one under § 2241 on the ground that the Martes,
released on bail pending charges but not convicted of a crime, are not in custody “pursuant
to the judgment of a state court.” 28 U.S.C. § 2254(a). No party challenges this decision.

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Special App. at 48. The court then specifically asked if defense counsel wished to be heard

on the proposed course of action. Defense counsel not only indicated that they did not wish

to be heard, but also confirmed that the court intended to follow its inclination to take a

partial verdict. These circumstances, by themselves, demonstrate implicit consent to the trial

court’s inclination to declare a mistrial on other counts.

       As the New York Court of Appeals observed in its published decision in this case, the

very purpose of the described conference was “for the attorneys to advise the court

concerning the appropriate response to a jury note in order to assist the court in averting

error.” Marte v. Berkman, 16 N.Y.3d at 876, 925 N.Y.S.2d at 389 (citing People v. O’Rama,

78 N.Y.2d 270, 574 N.Y.S.2d 159 (1991)). To not recognize implicit consent in counsels’

action (and inaction) in response to the trial court’s preview of its intended response to the

jury report of impasse would allow defense counsel to create “the false impression of

acquiescence even while anticipating a subsequent objection,” thus defeating the purpose of

an O’Rama conference. Id.2 The Court of Appeals’ approach to implicit consent thus

accords with federal jurisprudence. See Maula v. Freckleton, 972 F.2d at 29 (inferring such

consent “tracks the general principle applied in other areas of trial practice, when failure to

object to a ruling, which at the time it is made or proposed could readily be changed, will bar

future attempts to review that ruling” (emphasis added)).

       2
         We have no occasion to consider to what extent the Court of Appeals’ conclusions
on this issue may represent rulings of state procedural law that cannot be reviewed by this
court. See Maula v. Freckleton, 972 F.2d at 28 (“‘[I]t is not the province of a federal habeas
court to reexamine state court determinations on state law questions’” (quoting Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991))).

                                              4
       The finding of implicit consent in this case is, moreover, reinforced by defense

counsels’ failure to avail themselves of other opportunities to voice objection to the

declaration of a mistrial, notably when counsel declined the court’s invitation to be heard

after the jury was polled, and failed to speak before the court discharged the jury from the

courtroom. Only after the jury was discharged and left the courtroom did defense counsel

first signal a belated objection to the mistrial declaration.

       Although we have recognized that “the decision to declare a mistrial is not irreversible

until the jury has been discharged,” here the jury was discharged. United States v.

Razmilovic, 507 F.3d at 141 (observing that “‘[o]nce the jury is discharged and has

dispersed, a trial court is unable to reconsider its intention to declare a mistrial’” (quoting

Camden v. Circuit Court of the Second Judicial Circuit, 892 F.2d at 616 n.7)). The record

indicates that after the trial judge dismissed the jury, defense counsel requested that the jury

be held. The trial judge so instructed the court officer, but the record is not clear as to

whether the court officer was able to carry out the instruction. In these circumstances, we

do not attempt to resolve record ambiguities as to the exact physical whereabouts of the

jurors at the time defense counsel voiced objections “to protect the record.” Special App. at

53. Rather, we conclude that a belated attempt to establish a record cannot substitute for a

timely objection to a decision that had already been previewed and then made under

circumstances where defense counsel’s own words and actions implied consent.




                                               5
3.     Manifest Necessity

       Respondent submits that even without consent, petitioners’ double jeopardy challenge

fails because the mistrial was supported by manifest necessity. See United States v.

Razmilovic, 507 F.3d at 136 (retrial permitted where mistrial compelled by “manifest

necessity”). Recognizing that “the trial court is in the best position to assess all the factors

which must be considered in making a necessarily discretionary determination whether the

jury will be able to reach a just verdict if it continues to deliberate,” we generally accord the

trial court “broad discretion in deciding whether or not ‘manifest necessity’ justifies a

discharge of the jury.” Arizona v. Washington, 434 U.S. 497, 509, 510 n.28 (1978); accord

United States v. Razmilovic, 507 F.3d at 137. In this case, we are mindful that the Appellate

Division and the New York Court of Appeals have not upheld the challenged mistrial on this

ground. But, because our identification of implied consent is enough, by itself, to affirm the

district court’s judgment, we rely on that ground and do not further pursue the question of

manifest necessity.

4.     Conclusion

       The judgment denying habeas relief is AFFIRMED and the district court’s stay of

state criminal proceedings is VACATED.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




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