                                                                               FILED
                             NOT FOR PUBLICATION                                APR 18 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SALVADOR M. RENTERIA,                              No. 11-15367

               Petitioner - Appellant,             D.C. No. 3:08-cv-05325-CRB

  v.
                                                   MEMORANDUM *
DERRAL G. ADAMS, Warden,

               Respondent - Appellee.



                     Appeal from the United States District Court
                       for the Northern District of California
                     Charles R. Breyer, District Judge, Presiding

                              Submitted April 16, 2013 **
                               San Francisco, California

Before: GOODWIN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.

       Petitioner appeals from the district court’s denial of his petition for a writ of

habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1.     Absent a defendant’s consent, a trial court may permissibly declare a

mistrial only in cases where “‘manifest necessity’ justifies a discharge of the jury.”

Arizona v. Washington, 434 U.S. 497, 509 (1978). However, a “mistrial premised

upon the trial judge’s belief that the jury is unable to reach a verdict

[is] . . . considered the classic basis for a proper mistrial.” Id. While a trial judge

may not act “irrationally or irresponsibly” in declaring a mistrial, the declaration

will be upheld so long as it is the result of the trial judge’s exercise of “sound

discretion.” Id. at 514.

      Here, the California Court of Appeal reasonably applied clearly established

federal law when it denied Petitioner’s claim that the trial court improperly

declared a mistrial. We note that the Supreme Court has never “overturned a trial

court’s declaration of a mistrial after a jury was unable to reach a verdict on the

ground that the manifest necessity standard had not been met.” Renico v. Lett, 130

S. Ct. 1855, 1864 (2010) (internal quotation marks omitted). Neither has it

required “‘mechanical application’ of any ‘rigid formula’ when trial judges decide

whether jury deadlock warrants a mistrial.” Id. at 1863. Applying appropriate

deference, we conclude that the trial judge exercised its “sound discretion” when it

declared a mistrial after the jury stated that it could not reach a verdict. See id. at

1860, 1863-66.


                                            2
      2.     We decline to reach the issue of whether trying Petitioner for first

degree murder a second time violated the Double Jeopardy Clause under Blueford

v. Arkansas, 132 S. Ct. 2044 (2012). Even assuming a violation, the California

Court of Appeal reasonably concluded that Petitioner’s acquittal for first degree

murder rendered the alleged violation “moot” or harmless. Clearly established

federal law does not impose “an automatic retrial rule whenever a defendant is

tried for a jeopardy-barred crime and is convicted of a lesser included offense.”

Morris v. Mathews, 475 U.S. 237, 245 (1986). Rather, “a new trial is required only

when the defendant shows a reliable inference of prejudice.” Id. at 246. The

California Court of Appeal reasonably concluded that Petitioner failed to show

prejudice, i.e., a reasonable probability that the court would not have convicted him

for second degree murder absent the first degree murder charge. See id. at 246-47.

      3.     We reject Petitioner’s claim that the California Court of Appeal

unreasonably applied clearly established federal law when it concluded that

Petitioner knowingly, voluntarily, and intelligently waived his right to a jury trial.

As the California Court of Appeal noted, Renteria challenged retrial of the first

degree murder charge, showing that he knew that there was a “substantial question

whether the . . . charge was constitutional.” Thus, the question of whether retrial of

the first degree murder charge violated the Double Jeopardy Clause did not deprive


                                           3
Petitioner of “real notice of the true nature of the charge against him.” See Bousley

v. United States, 523 U.S. 614, 618 (1998).

      For these reasons, the district court correctly denied relief.

      AFFIRMED.




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