                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-6607



DARRELL WASHINGTON,

                                             Petitioner - Appellee,

           versus

LARRY W. JARVIS,

                                            Respondent - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-02-1798-AM)


Argued:   November 30, 2004                  Decided:   June 1, 2005


Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and Norman K.
MOON, United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion. Judge Shedd wrote a
separate opinion concurring in part and dissenting in part.


ARGUED: Virginia Bidwell Theisen, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellant.    Justin S. Antonipillai, ARNOLD & PORTER, L.L.P.,
Washington, D.C., for Appellee.      ON BRIEF: Jerry W. Kilgore,
Attorney General, Richmond, Virginia, for Appellant.      Robyn M.
Holtzman, Kathryn E. Taylor, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      This matter is an appeal from the district court’s grant of a

writ of habeas corpus based on a violation of the Double Jeopardy

Clause.   We agree with the district court that the Supreme Court of

Virginia, in upholding Appellee’s conviction, unreasonably applied

clearly   established          federal    law     and    made   an     unreasonable

determination of the facts.              We also agree that no proper basis

existed   for     the    trial    court’s        declaration    of     a    mistrial.

Therefore, we affirm.



                                          I.

      At issue in this appeal is the propriety of a habeas grant

setting   aside    the       conviction    of    Appellee   Darrell        Washington

(“Washington”).         In    August     1999,    Washington    was    indicted         in

Virginia state court for aggravated robbery.                     In Washington’s

original trial on December 15, 1999, the court came to a point at

the   beginning    of    a    scheduled    two-day      trial   in    which       it   had

empaneled and sworn a jury of twelve, but one of the jurors was to

be excused by 5:30       P.M.    on the first day and another was to be

excused   for   the     entire    second       day.     Recognizing        that    these

circumstances would likely require the use of alternate jurors, the

court sought to select alternates pursuant to its authority under




                                           2
Section    8.01-360   of   the   Virginia   Code.1   Although   potential

alternates remained in the jury pool of twenty, only two remained

whom counsel had not already struck.        Virginia procedure, however,

requires that at least three veniremen be available for each

alternate.2   The court attempted to cure this problem by proposing

an unorthodox selection procedure, but both sides objected and no

solution was availing. The result was the following colloquy among

the court, Washington’s counsel (Ms. Wolfe), and the Commonwealth’s

Attorney (Mr. Hudgins):

     The   Court:      That’s a mistrial.
     Ms.   Wolfe:      Your Honor, and I’m going to say this—
     The   Court:      Now you are going to have jeopardy.
     Ms.   Wolfe:      We have jeopardy, but the Court—
     The   Court:      The Commonwealth won’t agree to the cure.
     Mr.   Hudgins:    There wasn’t a jury sworn.
     The   Court:      No, sir.
     Ms.   Wolfe:      The jurors were sworn.
     The   Court:      I tried to get this case tried and tried
                       to get it done, but we are going to fight
                       over this. And you want your statutory
                       right. You want your statutory right.
                       We do not have sufficient jurors to have
                       a replacement for the juror sworn.
                       That’s a mistrial.
     Ms. Wolfe:        Thank you, Your Honor.


     1
      Section 8.01-360 provides in part: “Whenever in the opinion
of the court the trial of any criminal or civil case is likely to
be a protracted one, the court may direct the selection of
additional jurors who shall be drawn from the same source, in the
same manner and at the same time as the regular jurors.” Va. Code.
Ann. § 8.01-360 (Michie 2000).
     2
      Section 8.01-360 provides in part: “When one additional juror
is desired, there shall be drawn three veniremen, and the plaintiff
and defendant in a civil case or the Commonwealth and accused in a
criminal case shall each be allowed one peremptory challenge.” Va.
Code. Ann. § 8.01-360 (Michie 2000).

                                     3
     Mr. Hudgins:      I’m going to ask, Your Honor—could we
                       place it on the docket for another day?
     The Court:        Well, of course that’s what we are going
                       to do.
     Ms. Wolfe:        Well, I think there’s really an argument
                       about—
     The Court:        Now she’s going to claim that jeopardy
                       attaches.
     Ms. Wolfe:        Well, it did attach because the jurors
                       were sworn.
                       We will get the transcript—
     The Court:        Now she is going to move to dismiss on
                       double jeopardy grounds.
                       You’re objecting to my attempted cure to
                       get a jury in the box, and you have a
                       right to do that, and you have statutory
                       authority for it.
     Ms. Wolfe:        And we can set a date.
     The Court:        Bring the jurors in, both sides, lobby
                       and here.


J.A. 54–56.     Commenting that “[w]e can’t comply with the Code of

Virginia and give both the defense and Commonwealth their rights

under   the   statute,”     the   trial         court   determined      that    “the

[legislative]    statement    compels       a    declaring    of   a    mistrial.”

J.A. 57.    Accordingly, the trial court excused the jury panel and

prospective jurors and scheduled a new trial for a later date.                    In

justifying    this   act,   the   court     explained       that   it    would    be

impossible to finish the trial within one day, and on the second

scheduled day the court would be unable to have twelve jurors.

J.A. 58–59.     The court did not mention any other basis for the

mistrial.       It   also   did   not   mention         considering     any    other

alternatives to solving the empaneling problem, such as continuing

the existing trial to a date when all jurors would be available.


                                        4
At the close of the proceedings, Washington’s counsel requested

that a transcript of the trial be prepared “fairly quickly,” which

the trial court acknowledged by stating “[t]hank you.” J.A. 60-61.

      Several months later, on March 6, 2000, a second trial was

held before a new judge.            Prior to the selection of the jury in

this second trial, Washington’s counsel moved for a dismissal on

double jeopardy grounds, which the second judge denied.                       In doing

so, the second judge reaffirmed the first judge’s finding that

manifest    necessity       existed    to    declare       a   mistrial.      J.A.    93.

Subsequently, Washington was tried and convicted of robbery and the

use of a firearm in the commission of a robbery.

      Washington appealed his conviction in the second trial to

Virginia’s    intermediate       appeals         court,    the     Virginia   Court    of

Appeals, arguing in part that the second trial violated the Double

Jeopardy Clause of the Fifth Amendment.                   In an opinion dated March

27, 2001, the Virginia Court of Appeals held that the first

Virginia trial judge failed to consider possible alternatives to a

mistrial, and therefore, “because no manifest necessity required

the   trial   judge    to     declare    a       mistrial,     the   double   jeopardy

prohibition    bars     the    retrial       of    appellant.”         Washington     v.

Commonwealth, 543 S.E.2d 638, 646 (Va. Ct. App. 2001).                        The court

also expressly rejected the Commonwealth’s claim that Washington

had   not   objected    to    the     declaration         of   a   mistrial   and    that

therefore his appeal was procedurally barred.                        Id. at 640 n.1.


                                             5
Accordingly, the Virginia Court of Appeals reversed and dismissed

Washington’s convictions.     Id. at 646.

     After this reversal by the Virginia Court of Appeals, the

Commonwealth then appealed to the Supreme Court of Virginia.

After initially refusing to allow the Commonwealth to appeal, the

Supreme Court of Virginia ultimately decided to hear the case.3         At

this appeal, the Commonwealth argued that Washington had implicitly

consented to the first Virginia trial judge’s declaration of a

mistrial by not explicitly objecting to it.         The Supreme Court of

Virginia accepted this argument and determined that no double

jeopardy violation had occurred.         Accordingly, in an order dated

March 1, 2002, the Supreme Court of Virginia reversed the Court of

Appeals judgment and reinstated Washington’s convictions.          Because

of its dispositive finding that Washington had consented to the

mistrial, the Supreme Court of Virginia did not address whether

manifest necessity would have required a mistrial notwithstanding

Washington’s consent.

     Upon   this   judgment   by   the    Supreme   Court   of   Virginia,

Washington filed a petition for rehearing, which the Supreme Court


     3
      The Supreme Court of Virginia first denied the appeal in an
order dated July 25, 2001.    Commonwealth v. Washington, R. No.
010913 (Va. July 25, 2001). The Commonwealth then filed a petition
for rehearing, which the Supreme Court of Virginia also denied in
an order dated September 14, 2001. Commonwealth v. Washington, R.
No. 010913 (Va. Sept. 14, 2001). One week later, however, in an
apparent sua sponte order, the Supreme Court of Virginia changed
its position and granted the rehearing.          Commonwealth v.
Washington, R. No. 010913 (Va. Sept. 21, 2001).

                                    6
of Virginia denied on April 19, 2002.       Commonwealth v. Washington,

R. No. 010913 (Va. Apr. 19, 2002).       Washington then filed a state

habeas petition with the Supreme Court of Virginia, which was

dismissed on November 13, 2002.          Washington v. Warden, R. No.

010913 (Va. Nov. 13, 2002).        Having exhausted his state habeas

remedies, Washington petitioned the Federal District Court for the

Eastern District of Virginia for federal habeas corpus relief.           In

the petition, Washington argued in part that the Supreme Court of

Virginia failed to recognize that Washington preserved his double

jeopardy rights for appeal by implicitly objecting to the first

Virginia trial judge’s declaration of a mistrial.              The district

court granted his petition, finding the following determinations of

the Supreme Court of Virginia to be “unreasonable”: (1) its bright-

line test in which failure to object, by itself, qualifies as

consent to a mistrial, and (2) its factual determination that

Washington did not object to the court’s sua sponte declaration of

a mistrial.    The Commonwealth now appeals.



                                   II.

     Before    considering   the   merits   of   the   case,   a   threshold

question must be addressed.        Washington argues that this Fourth

Circuit Court of Appeals panel is not properly constituted because

it includes a district court judge, who sits by designation of the

Chief Judge.     A federal statute, 28 U.S.C. § 292, empowers a


                                    7
federal court of appeals chief judge to designate district judges

within the circuit for temporary service on the court of appeals.

Washington     contends     that    this   statute     is   an     unconstitutional

violation of the Appointments Clause, which provides specific

procedures for the filling of Article III judgeships.                    He argues

that the President alone has the authority to appoint judges to

service   on    a   court    of    appeals,      whether    such    appointment    is

permanent or temporary.

     The Appointments Clause provides in part that the President

shall have the power to nominate “Judges of the supreme Court, and

all other Officers of the United States.”                   U.S. Const. art. II,

§ 2, cl. 2 (emphasis added).                   Article III provides that the

judicial power “shall be vested in one supreme Court, and in such

inferior Courts as the Congress may from time to time ordain and

establish.”     U.S. Const. art. III, § 1 (emphasis added).                No other

provision      of   the     Constitution        provides    further    instruction

regarding the inferior courts.4                In this sense, the Constitution

makes a deliberate judicial division only between the Supreme Court

and other Article III courts; it does not distinguish between

levels    within     the     inferior      federal    courts.         Because     the



     4
      Washington also finds support in the Recess Appointments
Clause, U.S. Const. art. II, § 2, cl. 3, which concerns temporary
appointments. This clause has no application here, as it exists
for the limited purpose of allowing the President temporarily to
fill offices “during the Recess of the Senate,” when it would
otherwise be impossible to nominate and appoint such officers.

                                           8
Constitution does not contemplate any particular judicial divisions

within the inferior courts, the structure of that system has been

left to congressional discretion.              Congress is free to determine

not only which inferior courts shall exist, but also what the

jurisdiction and hierarchy of those courts shall be, and what

powers    and   duties     the   judges       of   those   courts    shall    have.

Accordingly,     while     the   Appointments        Clause   does    govern    the

procedure for filling Article III judgeships, Congress nevertheless

may define the responsibilities of those judgeships.

     The history of the U.S. Court of Appeals supports this view.

As Washington himself recognizes, Congress has a long history of

using its discretion to modify the duties and powers of the

inferior courts.    In particular, Congress historically has granted

district judges the power to sit on panels of the U.S. Court of

Appeals. Indeed, the original Court of Appeals, created along with

the District Court by the Judiciary Act of 1789, was composed of

one district court judge and two members of the Supreme Court

riding circuit.     See 13 Charles A. Wright et al., Federal Practice

And Procedure § 3503–3504.         Later, when Congress passed the Evarts

Act of 1891, the Court of Appeals became staffed by permanent

appeals   judges,    but    even    then      district     judges    made    regular

appearances on these panels.         Although Washington argues that the

Evarts Act dramatically altered the role of district judges in the

inferior courts by making district and circuit judgeships distinct


                                          9
principal offices, the limited academic commentary on this subject

suggests just the opposite.     See id.; Diluting Justice on Appeal?:

An Examination of the Use of District Court Judges Sitting by

Designation on the United States Courts of Appeals,            28 U. Mich.

J.L. Ref. 351, 360 (1995) (“From the earliest date . . . district

judges were authorized to sit by designation as visiting judges on

the new courts of appeals.”). In this sense, history confirms that

Congress always has had the discretion to modify the powers and

duties of judges within the inferior courts.

     Exercising this discretion, Congress has chosen to enact the

designation statute that Washington challenges, 28 U.S.C. § 292.

The statute specifically modifies the duties of district judges to

allow for their temporary service on panels of the Court of

Appeals. Such a change is entirely consistent with Congress’s past

modifications to the inferior courts.         In fact, this alteration is

far less sweeping than the changes imposed upon the Court of

Appeals   by   the   Evarts   Act   of    1891,   whose   constitutionality

Washington has not questioned.       Therefore, we see no reason why 28

U.S.C. § 292, too, should not pass constitutional muster.

     Washington argues that allowing designation would subvert the

President’s appointment power by granting district judges greater

powers than those the President intended to grant them.            Yet the

President surely is aware when nominating district judges that

§ 292 empowers them to serve temporarily on the Court of Appeals.


                                     10
If this matter plays a significant role in the President’s choice

of appointment, then presumably the President takes it into account

when deciding to appoint a district judge in the first place.

     For these reasons, Washington’s arguments are unavailing, and

it is proper for a district judge to sit on this panel by the

designation of the Chief Judge.   This panel therefore may hear the

merits of the appeal.



                               III.

     We review the district court’s conclusions of law, including

its ultimate determination that Appellee has established a double

jeopardy violation entitling him to habeas relief, de novo.       See

Allen v. Lee, 366 F.3d 319, 323 (4th Cir. 2004).            Under the

Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.

§ 2254, if a state court already has adjudicated a claim against

the defendant, a federal court may grant habeas relief only if the

state court’s adjudication was contrary to, or an unreasonable

application of, clearly established federal law, or was based on an

unreasonable determination of the facts.     See 28 U.S.C. § 2254(d);

Williams v. Taylor, 529 U.S. 362, 403–13 (2000); Richmond v. Polk,

375 F.3d 309, 321 (4th Cir. 2004).     In all other circumstances, the

AEDPA standard requires deference to a state court’s decision on

the merits.   See id.




                                  11
     The unreasonable application clause from § 2254 is highly

deferential to state courts.          Under this standard, “a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the state-court decision

applied [the law] incorrectly,” Woodford v. Visciotti, 537 U.S. 19,

24–25 (2002) (citation omitted), or even if it finds that the state

court’s actions to be “clear error.”       Lockyer v. Andrade, 538 U.S.

63, 75 (2003). Nevertheless, this standard does allow the issuance

of   a   writ   for   state   court    actions   that   are   “objectively

unreasonable.”    Id.   In defining what is unreasonable, the United

States Supreme Court has suggested that every application of law

has a certain range of reasonableness, but it also has recognized

that ultimately, “[t]he term ‘unreasonable’ is a common term in the

legal world and, accordingly, federal judges are familiar with its

meaning.” Yarborough v. Alvarado, 541 U.S. 652, __, 124 S. Ct.

2140, 2149 (2004) (citing Williams v. Taylor, 529 U.S. 362, 410–11

(2000)).

     The Commonwealth argues that the district court erred in three

respects. Specifically, it contends that the district court erred:

(1) in failing to recognize that the Supreme Court of Virginia

applied Virginia’s contemporaneous objection rule; (2) in finding

that the Supreme Court of Virginia’s determination that Washington

consented was an unreasonable application of clearly established

United States Supreme Court law and based on an unreasonable


                                      12
determination of the facts; and (3) in finding that there was no

manifest necessity to support the trial court’s declaration of a

mistrial.       We consider these arguments in turn.



                                      A.

        As a threshold matter, we disagree that consideration of the

merits of this case is precluded by a Virginia procedural bar.

Appellant argues that the Supreme Court of Virginia applied its

contemporaneous objection rule, Supreme Court of Virginia Rule

5:25, to bar consideration of the double jeopardy issue.5              For at

least       three   reasons,   however,    the   record   indicates   that   no

procedural bar was applied. First, and most obviously, the Supreme

Court of Virginia did not give it as a reason for its ruling.

Although the court’s majority did cite a host of Virginia cases

invoking Rule 5:25, its opinion nevertheless came to a substantive

conclusion—a result that is inconsistent with the application of a

procedural bar.        Specifically, the court determined that “[having

consented to the mistrial, the defendant waived his double jeopardy

rights.”       Commonwealth v. Washington, 559 S.E.2d 636, 639 (Va.



        5
      Supreme Court of Virginia Rule 5:25 is a state procedural
appeal rule whereby a party does not preserve an issue for appeal
if he or she fails to offer a contemporaneous objection: “Error
will not be sustained to any ruling of the trial court or the
commission before which the case was initially tried unless the
objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable this Court to
attain the ends of justice.” Sup. Ct. Va. R. 5:25.

                                      13
2002)(emphasis     added).       Such    a    holding     would   not    have    been

necessary had Rule 5:25 precluded substantive analysis.

     Second, based upon the unique manner in which the Supreme

Court of Virginia discussed Rule 5:25, we cannot assume that it

intended   to   apply     Rule   5:25   implicitly.         Significantly,        the

majority cited a long string of Virginia cases discussing the

jurisprudence     of   Rule    5:25,    but   it   then    failed   to    make    any

application of these cases to Washington’s circumstances. In fact,

without further comment, the majority abruptly turned to its

substantive conclusions.         Commonwealth v. Washington, 559 S.E.2d

636, 639 (Va. 2002).       This omission is telling.          In the past, when

the Supreme Court of Virginia has desired to apply the procedural

bar, it has been very clear in doing so.                Indeed, this clarity is

demonstrated by the very Rule 5:25 cases that the majority cited in

its opinion.      See Remington v. Commonwealth, 551 S.E.2d 620, 634

(Va. 2001) (“We will not consider the defendant's contentions

because    they     are       procedurally      defaulted.”);       Schmidt        v.

Commonwealth, 547 S.E.2d 186, 194 (Va. 2001), cert. denied, U.S.

(2002) (“Because Schmidt failed to object contemporaneously to the

admission of this evidence, Schmidt has waived this objection on

appeal.    Rule 5:25.”); Overtone v. Commonwealth, 539 S.E.2d 421,

423 (Va. 2000) (“His failure to make contemporaneous objections at

trial precludes consideration of those issues on appeal.                         Rule

5:25.”).   For this reason, the fact that the majority decided to


                                        14
cite these very Rule 5:25 cases and then decline to follow their

example is significant.        Moreover, it should be noted that in the

prior history of this case, the Virginia Court of Appeals also

specifically addressed the procedural bar issue in its own opinion.

In     deliberate   fashion,    it   explicitly   rejected   this   claim.6

Washington v. Commonwealth, 543 S.E.2d 638, 640 n.1 (Va. Ct. App.

2001).     If the Supreme Court of Virginia had intended to reject

this ruling by the Virginia Court of Appeals, one might expect to

see a reference to it in its opinion.       And yet the Supreme Court of

Virginia did not even mention the lower court’s consideration of a

procedural bar.       In this sense, the surrounding circumstances

strongly suggest that the majority was not applying a procedural

bar.

       Third, the Virginia contemporaneous objection rule could not

have applied because the record indicates that the actions of

Washington’s counsel would have satisfied Virginia’s requirements

for an objection.      Rule 5:25 provides merely that the objection

must be “stated with reasonable certainty at the time of the

ruling.”    Sup. Ct. Va. R. 5:25 (emphasis added).      In addition, the

Virginia Code provides that when voicing an objection to the court,


       6
      The Virginia Court of Appeals rejected the application of its
equivalent version of procedural bar rule, Rule 5A:18. Virginia
courts have routinely found that Rule 5A:18 is “virtually
identical” to Rule 5:25, Jimenez v. Commonwealth, 402 S.E.2d 678,
680 (Va. 1991), and that “what is said in application of one
applies to the other.” Perez v. Commonwealth, 580 S.E.2d 507, 513
n.8 (Va. Ct. App. 2003) (Agee, J., concurring).

                                      15
a party need not make a formal exception, but only put the court on

notice of the nature of the objection and the grounds for making

it.   See Va. Code Ann. § 8.01-384 (Michie 2000) (providing that “it

shall be sufficient that a party, at the time the ruling or order

of the court is made or sought, makes known to the court the action

which he desires the court to take or his objections to the action

of the court and his grounds therefor”).   Furthermore, it is clear

that Rule 5:25 itself exists for practical, rather than formalistic

purposes.      “This rule exists to protect the trial court from

appeals based upon undisclosed grounds, to prevent the setting of

traps on appeal, to enable to trial court to rule intelligently,

and to avoid unnecessary reversals and mistrials.”        Fisher v.

Commonwealth, 374 S.E.2d 46, 52 (Va. 1988), cert. denied, 490 U.S.

1028 (1989).

      Recognizing these standards, the Supreme Court of Virginia

itself has refused to exercise Rule 5:25 despite a party’s failure

to object explicitly when a court has notice of the objection and

an opportunity to make a meaningful ruling on it.       See Ward v.

Insurance Co. of N. Am., 482 S.E.2d 795, 796 n.1 (Va. 1997)

(finding that notwithstanding her failure to object, a party’s

appeal right was preserved because “[t]he record is clear that Ward

argued [the issue] to the trial court” and she “was not required to

make a formal objection to the trial court’s order because the

court was aware of her objections”).   Cf. Johnson v. Raviotta, 563


                                 16
S.E.2d 727, 732 (Va. 2002) (finding no waiver when a party had

argued that the jury should not be allowed to consider certain

testimony and the trial court was aware of this objection and could

have provided an appropriate instruction to the jury).

       In the instant case, it is clear that the arguments of

Washington’s counsel satisfied these Virginia procedural standards.

As discussed more fully in Section III.B.3, infra, the first

Virginia trial judge certainly was aware of Washington’s counsel’s

double jeopardy objections before finalizing the mistrial, for he

specifically stated during the proceedings, “[n]ow she’s going to

move to dismiss on double jeopardy grounds.”          J.A. 55.     Under a

plain reading of the Virginia procedural statutes and case law

concerning contemporaneous objections, therefore, Washington would

have satisfied the requirements to preserve the double jeopardy

issue for appeal. In this sense, the circumstances further suggest

that the Supreme Court of Virginia did not intend to apply Rule

5:25 as a procedural bar.

       Rather than using Virginia Supreme Court Rule 5:25 in its

traditional sense, it appears that the majority was offering the

jurisprudence of Rule 5:25 as analogous case law to support its

substantive conclusion that waiver had occurred.                Under such

reasoning, the circumstances of Washington’s objection would not

only    cast   doubt   upon   whether    he   had   satisfied    Virginia’s

contemporaneous objection rule, but they would also tend to suggest


                                    17
a constitutional waiver of Washington’s underlying double jeopardy

rights.     To be sure, such an argument would erroneously conflate

the related but independent concepts of constitutional waiver rules

and     contemporaneous     objection    rules.       Indeed,     the    state’s

contemporaneous    objection      standard     requires    far   more    vigilant

action from a party to preserve rights than does the constitutional

standard for withholding consent.            Whereas the Virginia procedural

bar rule will cause a party to lose its appeal rights if it does

not state an objection “with reasonable certainty,” Sup. Ct. Va. R.

5:25,    constitutional     waiver   rules      “indulge    every   reasonable

presumption against waiver” of fundamental rights.                  See, e.g.,

Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1942).                Regardless

of the merit of such reasoning, however, the majority evidently was

not applying Rule 5:25 as a procedural bar.



                                        B.

      Appellant next argues that the Supreme Court of Virginia’s

decision    was   neither    an   unreasonable     application      of    clearly

established federal law nor an unreasonable determination of the

facts.    As to these claims, which are at the heart of the appeal,

we disagree on both counts.




                                        18
                                       1.

       Before considering Appellant’s claims, we must first address

the applicable federal law.            The Double Jeopardy Clause of the

Fifth Amendment protects a criminal defendant from being subjected

to successive prosecutions for the same offense.                    It grants a

criminal defendant not merely a safeguard from the retrial of

unsuccessful prosecutions, but also a right to have his “trial

completed by the first jury empaneled to try him.”                      Oregon v.

Kennedy, 456 U.S. 667, 673 (1982).             In jury trials, this right

attaches as soon as the jury has been sworn.                   Serfass v. United

States, 420 U.S. 377, 388 (1975).            Two exceptions exist to this

general right, however.          First, a court may declare a mistrial if

the    defendant,      without    intermeddling     or        goading   from    the

prosecution, freely consents to the mistrial. Kennedy, 456 U.S. at

674.     Second, even if a defendant does not consent, a court

nevertheless     may    declare    a   mistrial    if    it    makes    a   factual

determination that there is “manifest necessity” to do so.                   United

States v. Dinitz, 424 U.S. 600, 606–607 (1976).

       The United States Supreme Court has long since adopted a

“totality   of   the    circumstances”      test   for   determining        whether

manifest necessity exists.         See United States v. Sanford, 429 U.S.

14, 15–16 (1976) (citing United States v. Perez, 22 U.S. (9 Wheat.)

579, 580 (1824)).       In Justice Story’s classic formulation, courts

“are to exercise a sound discretion on the subject; and it is


                                       19
impossible to define all the circumstances, which would render it

proper to interfere.     To be sure, the power ought to be used with

the greatest caution, under urgent circumstances, and for very

plain and obvious causes.”     Perez, 22 U.S. (9 Wheat.) at 580.      More

recently, the Supreme Court has emphasized that this manifest

necessity standard requires careful deliberation and consideration.

“[T]he   key   word   ‘necessity’   cannot   be   interpreted   literally;

instead . . . we assume that there are degrees of necessity and we

require a ‘high degree’ before concluding that a mistrial is

appropriate.” Arizona v. Washington, 434 U.S. 497, 506 (1978). In

affirming a trial court’s finding of manifest necessity, the

Arizona Court was careful to note “that the trial judge acted

responsibly and deliberately, and accorded careful consideration to

respondent’s interest in having the trial concluded in a single

proceeding,” thereby exercising “sound discretion.”             Id. at 516

(emphasis added).       Lower courts have acknowledged this clearly

established Supreme Court principle by requiring that a trial court

consider alternatives to a mistrial. “In order to determine if the

mistrial was required by manifest necessity, the critical inquiry

is whether less drastic alternatives were available.”               United

States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993) (citing

Harris v. Young, 607 F.2d 1081, 1085 n.4 (4th Cir. 1979)).             See

also United States v. Jorn, 400 U.S. 470 (1971) (holding that it

was an abuse of discretion for trial judge to declare a mistrial


                                    20
without considering alternatives to the mistrial).               When such

alternatives   exist,    manifest   necessity    does   not   exist   for   a

mistrial.    See Shafer, 987 F.2d at 1058, Harris, 607 F.2d at

1085–86.    A continuance is one viable alternative to declaring a

mistrial.    See Jorn, 400 U.S. at 487 (citing Perez, 22 U.S. (9

Wheat.) at 580).

     The “totality of the circumstances” test applies not only to

a court’s determination of whether manifest necessity exists, but

also to its determination of whether consent has occurred.                See

Sanford, 429 U.S. at 16 (“The government’s right to retry the

defendant, after a mistrial, in the face of his double jeopardy

claim is generally governed by the test laid down in Perez.”)

(emphasis added) (citation omitted).         Lower court rulings have not

deviated from this standard, but rather built upon it.           See, e.g.,

United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir. 1973),

cert. denied, 414 U.S. 873 (1973); United States v. Nichols, 977

F.2d 972, 974 (5th Cir. 1992).            Therefore, while it is indeed

possible for a court to infer consent based on a defendant’s simple

silence, it may only do so if the totality of the circumstances

justifies   such   a   finding.     See   Goldstein,    479   F.2d   at   1067

(“Consent need not be express, but may be implied from the totality

of the circumstances attendant on a declaration of mistrial.”);

United States v. Gantley, 172 F.3d 422, 428–29 (6th Cir. 1999)

(finding that “simple silence” can only be an indication of consent


                                     21
if the totality of the circumstances positively indicated that

silence “was tantamount to consent”).             Moreover, the Supreme

Court’s overarching principles regarding consent are also clearly

established.      While a court need not satisfy itself that the

consent was “knowing, intelligent, and voluntary,” United States v.

Dinitz, 424 U.S. 600, 609 n.11 (1976), it should also “indulge

every reasonable presumption against waiver” of fundamental rights.

See, e.g., Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1942).

Further, if a court has any doubts regarding the status of those

rights, it should resolve them “in favor of the liberty of the

citizen,     rather   than   exercise    what   would    be   an   unlimited,

uncertain, and arbitrary judicial discretion.”            Downum v. United

States, 372 U.S. 734, 738 (1963) (quoting United States v. Watson,

28 F. Cas. 499, 501 (S.D.N.Y. 1868)).

     Finally, the Supreme Court has also made clear its standards

for effectively voicing objections.        In court proceedings, a party

need not use any particular language to preserve an objection,

provided that the court understands the objection and its basis.

Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174 (1988) (noting

that a party can preserve an objection by making “known to the

court the action which the party desires the court to take or the

party's objection to the action of the court and the grounds

therefor”)    (quoting Fed. R. Civ. P. 46).        See    also     Mickens v.




                                    22
Taylor, 535 U.S. 162, 168 (2002); Holloway v. Arkansas, 435 U.S.

475, 490 (1978).

     Guided by these standards, we may now turn to consider the

Supreme Court of Virginia’s application of federal law in the

instant case.



                                  2.

     The first prong of Appellant’s claim concerns the Supreme

Court of Virginia’s application of federal law regarding the Double

Jeopardy Clause, which the court employed to determine that waiver

had occurred.   The Supreme Court of Virginia began its analysis by

acknowledging that the Fifth Amendment grants a criminal defendant

the right to have his trial completed by a single tribunal.       It

then explained that a defendant’s double jeopardy protections

nevertheless may be waived, and that “consent to a mistrial is

implied when a defendant had an opportunity to object to a mistrial

but failed to do so,” citing to United States v. Buljubasic, 808

F.2d 1260, 1265–66 (7th Cir. 1987), Goldstein, 479 F.2d at 1067,

and United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984)

(cited with approval in Peretz v. United States, 501 U.S. 923, 936

(1991)).   J.A. 176.   Next, the court described a number of Virginia

cases applying the Virginia contemporaneous objection rule, Rule

5:25, to preclude appeal when a timely objection was not made.

Finally, applying these standards to the facts, the court held that


                                  23
Washington had consented to the mistrial because his counsel failed

to make “an express objection to the circuit court’s declaration of

a mistrial.”   Commonwealth v. Washington, 559 S.E.2d 636, 639 (Va.

2002). After it issued its holding, the court later explained that

it was consistent with one of its earlier decisions.    In doing so,

it   noted   that   Washington’s   counsel   “participated,   without

objection, in the selection of a new trial date,” and that she did

not exercise the “specific objections” regarding Double Jeopardy

that she had made in the past.

     This application of federal law by the Supreme Court of

Virginia was unreasonable. While the Supreme Court of Virginia did

later refer to other actions of Washington’s counsel, its holding

focused solely on the bright-line issue of whether Washington’s

counsel had explicitly objected.    Its analysis makes clear that it

relied on this single issue, and not the other points it discussed

later, in determining that Washington had consented.7 As discussed


     7
      Further, even if these two other issues had been a further
basis for the court’s finding of consent, we still would find that
the court’s decision was unreasonable. "Under the 'unreasonable
application' clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from this Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case." Williams v. Taylor, 529 U.S.
362, 413 (2000).    Thus, even if the court’s reference to these
issues is taken to suggest that it was applying the totality of the
circumstances standard, the court also must be reasonable in
determining what constitutes the totality of the circumstances.
Here, even considering these potential other bases for its ruling,
the court’s “totality” analysis would fail. Neither basis would be
relevant to evaluating the totality of the circumstances. First,
as discussed in Section III.B.3, infra, any possible participation

                                   24
above, the United States Supreme Court has always required that

consent to mistrial must be determined based on a “totality of the

circumstances.”   It has never adopted the bright-line rule, used

here by the Supreme Court of Virginia, that consent is implied when

a defendant has an opportunity to object but does not explicitly

express an objection. Further, in focusing on whether Washington’s

counsel made this express objection, the Supreme Court of Virginia

disregarded clearly established Supreme Court law concerning the

sufficiency of an objection.   This standard focuses not on the use

of express language, but rather upon making “known to the court the

action which the party desires the court to take or the party's

objection to the action of the court and the grounds therefor."

Beech Aircraft, 488 U.S. at 174.   In this sense, the Supreme Court

of Virginia unreasonably applied clearly established United States

Supreme Court law.

     Parenthetically, the Supreme Court of Virginia’s bright-line

rule regarding consent also is not supported by the federal court

of appeals cases cited in its opinion.   These cases are consistent



by Washington’s counsel in setting a new trial came after the
double jeopardy issue had been raised, rendering the participation
irrelevant. Second, the fact that Washington’s counsel had made
more “specific objections” earlier in the proceedings has no
bearing on the legal sufficiency of the objection at issue. To be
valid, an objection need only put the court on notice of the
exception and its legal basis. Beech Aircraft, 488 U.S. at 174.
Thus, even if the Supreme Court of Virginia had justified its
ruling on these other bases too, its ruling still would be
unreasonable.

                                25
with the well-settled United States Supreme Court principle that

consent     must     be    considered        within    the    totality    of     the

circumstances.            Buljubasic    qualified      the     totality   of     the

circumstances principle to emphasize that                    “[p]arties may give

consent in many ways.”           Buljubasic, 808 F.2d at 1566.                 As an

example, the court stated that consent would be implied if a

defendant remained silent after a judge stated, “I think a mistrial

would be a good idea, but think this over and let me know if you

disagree.”     Id.    It did not, however, conclude that waiver should

be inferred any time there is an opportunity for objection and an

express objection is not made.           Similarly, Goldstein found that a

defendant’s silence qualified as an indication of continued support

for a mistrial when less than two hours before, the defendant had

suggested that the jury was deadlocked.                Goldstein, 479 F.2d at

1067.     The court there went on to emphasize that consent may be

implied from “the totality of the circumstances attendant on the

declaration    of    mistrial.”        Id.      More   significantly,     it    also

emphatically stated that it would not go so far as to hold that “in

the absence of an express objection to discharging the jury,

consent is, in effect, to be presumed.”                      Id. at 1067 n.11.

Finally, Bascaro found that waiver had occurred when the issue had

never been asserted at trial.           Bascaro, 742 F.2d at 1365 (citing

Grogan v. United States, 394 F.2d 287, 289 (5th Cir. 1967) (noting

that double jeopardy assertions need to be “affirmatively raised at


                                        26
some point in the proceedings”)).

      Each of these cases is in harmony with the United States

Supreme    Court’s   well-settled     “totality      of       the    circumstances”

standard and its longstanding principle that dictates against

presuming    a   defendant’s   waiver      of   fundamental         rights.      More

significantly, nothing in any of these cases reasonably can be

taken to mean that despite such standards, a failure to make an

“express    objection”     when    responding     to      a    judge’s       mistrial

declaration necessarily implies consent.           In focusing particularly

on   the   failure   of   Washington’s     counsel     to      make    “an    express

objection,” the Supreme Court of Virginia ignored its obligation to

consider    these    fundamental    standards.         In      this    sense,     its

application of federal law was unreasonable.



                                      3.

      The second prong of Appellant’s claim concerns the Supreme

Court of Virginia’s factual determinations based on the record.

Even if we were to accept that the Supreme Court of Virginia

reasonably applied federal law in making its decision, the factual

basis that the court used in applying the law also must be

reasonable for its judgment to pass muster.                         In its factual

analysis, the majority made the following determination:


      [D]efendant’s counsel in this case did not object to a
      new trial once the circuit court had declared a mistrial.


                                      27
      Indeed, defendant’s counsel in this case actually
      requested that the court set a date for a new trial and
      she participated, without objection, in the selection of
      a new trial date.     Moreover, the record in this case
      clearly shows that during the first trial, defendant’s
      counsel made clear and unequivocal objections to rulings
      of the circuit court that were adverse to her position.
      When she desired to object, she made specific objections.
      And, as we have already stated, she made no such
      objection to the court’s declaration of a mistrial.


Washington v. Commonwealth 559 S.E.2d 636, 640 (Va. 2002).

      This determination that Washington’s counsel failed to object

to the declaration of a mistrial is unreasonable in light of the

record.   Objections need not contain any particular talismanic

phrase to be valid.      Rather, they must “make known to the court the

action the party desires the court to take or . . . the grounds

therefor.”    Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174

(1988).   The same standard governs in Virginia, where “[f]ormal

exceptions to rulings or orders of the court shall be unnecessary.”

Va. Code. Ann. § 8.01-384 (Michie 2000).            The Virginia procedural

rules further provide that “it shall be sufficient that a party, at

the time the ruling or order of the court is made or sought, makes

known to the court the action which he desires the court to take or

his   objections    to   the   action    of   the   court   and   his   grounds

therefor.”    Id.

      It is true that Washington’s counsel did not explicitly state

the words “I object” in addressing the first Virginia trial judge’s

declaration of a mistrial.        Her language, however, taken in the


                                        28
context of the discussion, did make it clear to all relevant

parties that she was contesting the issue of double jeopardy.

Directly after the first Virginia trial judge first declared a

mistrial due to the empaneling problem, counsel began to voice her

objection. She stated, “[y]our honor, and I’m going to say this—.”

J.A. 54.   Before she could finish her sentence, however, the court

completed it for her, acknowledging “[n]ow you are going to have

jeopardy.”     Id. (emphasis added).             Washington’s counsel then

confirmed that this was indeed the point she intended to raise by

repeating, “[w]e have jeopardy.”               Id. (emphasis added).     Upon

hearing this statement, the court then indicated that it was aware

of its meaning.     Significantly, rather than contesting counsel’s

claim that jeopardy existed, the court lamented to both parties

that there was no way to fix this problem, declaring, “[t]he

Commonwealth won’t agree to the cure.”            Id.   When the Commonwealth

in response tried to suggest that double jeopardy concerns did not

apply by stating that the jury panel had not yet been sworn,

Washington’s counsel again intervened.             She noted, “[t]he jurors

were sworn,” emphasizing a point which would be the basis of any

double jeopardy claim.     J.A. 55.          After that statement, the court

once   again   indicated   that    it    recognized     the   significance   of

Washington’s counsel’s point by acknowledging the impasse that the

circumstances had created.        The court exclaimed to both parties in

frustration, “I tried to get this case tried, and tried to get it


                                        29
done, but we are going to fight over this.                       And you want your

statutory right.”      Id.

      This brief colloquy alone strongly suggests that Washington’s

counsel   did   take   the    steps   necessary        to   voice     an   objection.

Specifically,    before      she   “was    cut   off    .    .   .   by    the    judge,

[Washington’s] counsel began to articulate the argument” and “the

judge's response suggests that he perceived the . . . argument.”

Beech v. Rainey Aircraft, 488 U.S. 153, 174 (1988).                              But the

transcript goes still further to demonstrate this point.                           After

this discussion, the court came to the conclusion that the lack of

additional jurors required a mistrial, and it prepared to place the

case on the docket for another day.              Instead of participating in

this plan, counsel again engaged the court on the merits.                            She

stated, “[w]ell, I think there’s really an argument about—.”                        J.A.

55.   Once again, before she could finish, the court interrupted by

completing her sentence.           It stated, “[n]ow she’s going to claim

that jeopardy attaches.”           Id. (emphasis added).             And once again,

Washington’s counsel confirmed that this was indeed the point she

intended to make, stating, “[w]ell, it did attach because the

jurors were sworn.”       Id. (emphasis added).             Counsel’s persistence

in re-raising her argument here, at the very moment that the court

hoped that the parties would move on, is simply inconsistent with

the idea that she was not objecting.             Moreover, if there were any

remaining doubt as to this fact, the court itself quickly would


                                          30
deliver the coup de grâce.        After insisting that jeopardy existed,

Washington’s counsel then offered to look at the transcript to

confirm    this    point.    Recognizing         her   insistence,   the    court

acknowledged exactly why Washington’s counsel was remaining so firm

on the issue.      It stated, “[n]ow she is going to move to dismiss on

double    jeopardy   grounds.”      Id.       (emphasis   added).    More    than

anything else, this admission indicates that the court was vividly

aware that counsel was objecting and of the precise nature of her

objection.

      This exchange between the first Virginia trial judge and

Washington’s counsel also belies the Supreme Court of Virginia’s

finding that counsel “participated, without objection,” in the

setting   of   a   new   trial   date.        Although    Washington’s   counsel

ultimately did confer with the court when it was setting a new

trial date, she did so only after this extended colloquy when she

expressed her objections.        Only after the court acknowledged that

she was going to move to dismiss based on the Double Jeopardy

Clause did she offer the brief statement “we can set a date.”                J.A.

56.   We note in passing that counsel’s statement here does not

unambiguously refer to a date for a new trial.              Even if counsel had

been agreeing to set a new trial, however, it is understandable at

that point why she would do so.                  After Washington’s counsel

expressed her objection to the court, further protest could not

have been useful or appropriate. This fact is particularly true in


                                         31
Virginia, where state procedural rules specifically protect a party

from having to repeat objections that already have been raised.

See Va. Code Ann. § 8.01-384(A) (Michie 2000) (providing that “[n]o

party, after having made an objection or motion known to the court,

shall be required to make such objection or motion again in order

to preserve his right to appeal”).        Moreover, directly after this

exchange,   the   Virginia   trial   judge     promptly    made     his   ruling

indelible by excusing the jury permanently.                Because this act

foreclosed any last possibility that Washington still could be

tried by his original jury panel, further objection would have been

totally moot.     Thus, any subsequent involvement that Washington’s

counsel may have had in setting a trial date can hardly be

considered evidence of waiver.

     Moreover,    the   record   makes    it    clear    that     even    as   the

proceedings drew to a close in the trial, the first Virginia trial

judge was still cognizant that Washington’s counsel was objecting.

First, after excusing the jury and giving its reasons for declaring

a mistrial, the court again acknowledged the significance of the

jury empaneling, stating, “[t]he jury was sworn.                   It is very

important   constitutionally.”       J.A.      59.      Second,    and    equally

important, the court acknowledged counsel’s parting request that a

transcript of the day’s proceedings be prepared “fairly quickly.”

J.A. 60–61.   This request only could have meant that Washington’s

counsel was not dropping the issue of double jeopardy. Indeed, the


                                     32
only significant action that the Virginia trial judge performed in

that day’s proceedings was the granting of a mistrial.                Therefore,

Washington’s counsel only would have needed the transcript for

further argument on this very issue, and no other.                        For this

reason, the court’s acknowledgment, without further comment, of

counsel’s request is still further evidence that it was aware of

her objection.

       Although the preceding evidence already puts the fact that

Washington’s counsel objected beyond reproach, one further point is

warranted. Beyond reviewing the plain meaning of the colloquies in

the first trial, we may infer the meaning from the subsequent

behavior of the parties.              On this point as well, the record

irrefutably demonstrates that no one left the original trial with

the impression that Washington’s counsel was consenting to the

mistrial.     Indeed, at Washington’s subsequent trial, the second

Virginia trial judge entertained an extensive argument regarding

the    mistrial,   yet   no    one    there   claimed     that   Washington     had

consented     or   failed     to    object.      At     the   beginning    of   the

proceedings, Washington’s counsel raised the issue, stating, “I did

not request a mistrial.            Mr. Hudgins did not request a mistrial.

I think this is one of those cases where we would have to describe

it as a su esponte [sic] declaration of a mistrial by the Court.”

J.A.    70.    Neither      the    second    Virginia    trial   judge    nor   the

Commonwealth contested this claim.              Rather, the entire basis of


                                        33
argument before the court was the issue of manifest necessity for

the mistrial.     On this point, the second trial judge ultimately

determined that “the whole issue here . . . [was] whether the

[first trial judge] found this manifest necessity.”                 J.A. 93

(emphasis added).      It was not until the issue was appealed in the

Virginia courts that the Commonwealth first made its claim that

Washington had consented to the mistrial by his failure to object

explicitly.

      In sum, based on a plain reading of the record and the

subsequent behavior of the parties, the Supreme Court of Virginia’s

factual determination that Washington had failed to object was

unreasonable.



                                     4.

      The preceding analysis of the factual record does more than

demonstrate     that   the    Supreme     Court   of   Virginia’s   factual

determination was unreasonable.           It also satisfies us that this

factual determination, coupled with its unreasonable application of

federal law discussed in Section III.B.2, supra, produced an

unreasonable result. After reviewing the district court’s analysis

de novo, we agree that we must consider the issue of Washington’s

waiver based on the      totality of the circumstances and mindful of

the   Supreme   Court’s      directive    to   “indulge   every   reasonable

presumption against waiver” of fundamental rights.           Aetna Ins. Co.


                                     34
v. Kennedy, 301 U.S. 389, 393 (1942).                We also agree that the

factual record unmistakably demonstrates that Washington’s counsel

made her objection known to the court.         Applying these facts to the

proper legal standard, we conclude that Washington undoubtedly

asserted his double jeopardy rights, and it would be unreasonable

to   determine    otherwise.8         Accordingly,      the   trial    court’s

declaration of a mistrial was improper unless there was manifest

necessity for such a declaration.          We turn to this final issue now.



                                      C.

     In its final claim, Appellant argues that even if Washington

did not waive his double jeopardy rights, the district court erred

in finding that there was no manifest necessity to support an

independent declaration by the trial court of a mistrial.

     This last claim is entirely without merit.               As discussed in

Section III.B.1, supra, under Supreme Court law, a finding of

“manifest    necessity”   must   be    based    on    the   totality   of   the

circumstances.     United States v. Sanford, 429 U.S. 14, 15-16

(1976).     This clearly established standard generally requires an

     8
      This determination is consistent not only with the position
of the district court, but also with that of the Supreme Court of
Virginia’s dissenting opinion.    Commonwealth v. Washington, 559
S.E.2d 636, 641–44 (Va. 2002). The dissent would have ruled that
Washington did not consent to mistrial and that, because no
manifest necessity existed, a second trial by the Virginia trial
court was improper. The majority, because its ruling was premised
on a finding of Washington’s consent to mistrial, never considered
the issue of whether manifest necessity existed for the mistrial.

                                      35
investigation of whether less drastic alternatives to mistrial are

available.     United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir.

1993).    The presence of such alternatives, such as the continuance

of the trial, precludes a finding that manifest necessity exists.

See id. at 1058; United States v. Jorn, 400 U.S. 470, 487 (citing

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)).       Here,

the record clearly indicates that the original trial court did not

consider a number of viable alternatives, including continuance,

before making its ruling.      Rather, the court stated that there was

only one alternative to declaring a mistrial, which it did not

consider to be viable.       “The alternative [to mistrial], facing a

double objection, each with a correct legal basis, was to try the

case and see if it got in and done by 6 o’clock tonight.”       J.A. 58.

In failing to consider alternatives other than attempting to

complete the case quickly, the trial court erred.

       We find that based on the record, the less drastic alternative

of a continuance would have been available.      The record indicates

that one sworn juror was unavailable after 5:30      P.M.   on the first

day and another sworn juror was unavailable for the entire second

day.     It also indicates that the trial would likely last longer

than 5:30    P.M.   on the first day and that an inadequate number of

veniremen existed for the selection of an alternate juror.         Based

on these    constraints,    which are the only ones in the record, the




                                    36
court easily could have postponed the trial until all of the sworn

jurors were available to proceed.

       Furthermore, the court had the option of reevaluating whether

it would be proper to excuse the two jurors who claimed to have

conflicting obligations. One of these jurors had “a final class of

a graduate seminar” that evening at 6:00           P.M.   J.A. 43–44.      There

is no explanation for why the other juror was to be excused for the

following day entirely.        J.A. 13.    Despite this fact, the first

Virginia trial court did not even consider scrutinizing their

excuses to determine whether it still would be proper to excuse

them based upon the circumstances.         While a trial court is always

free   to   attempt   to   accommodate    jurors   and    prevent   them   from

suffering undue hardship as a result of their jury service, Blakey

v. Commonwealth, 29 S.E.2d 863, 865 (Va. 1944), the decision to

excuse jurors is generally a matter of discretion with the court.

See Va. Code Ann. § 8.01-341.2 (Michie 2000) (“The court, on its

own motion, may exempt any person from jury service . . . if

serving on a jury . . . would cause such person a particular

occupational inconvenience.”); Weeks v. Commonwealth, 450 S.E.2d

379, 389 (Va. 1994) (granting deference to the trial court’s

decision of whether to exclude or retain a prospective juror).

Therefore, despite these jurors’ expectations that they would be

excused (apparently based on assurances before the trial), the

first Virginia trial court was free to determine that it was no


                                    37
longer acceptable to excuse them due to the empaneling problem. In

failing        to     consider       at    least     scrutinizing      the    jurors’

justifications to determine if they were sufficient, the first

Virginia trial court missed another opportunity to consider a

“viable alternative” to mistrial.

     Based on the foregoing, we cannot say that “the trial judge

acted        responsibly      and     deliberately,       and    accorded         careful

consideration         to    respondent’s      interest     in    having     the    trial

concluded in a single proceeding.” Arizona v. Washington, 434 U.S.

497, 506 (1978).           For this reason, we agree with the district court

that, based on the record, manifest necessity did not exist for the

declaration of a mistrial.                Accordingly, Appellant’s final claim

also must fail.



                                            IV.

        In    light    of    the    foregoing      analysis,    we   find   both    that

Washington did not consent to the mistrial and that there was no

manifest necessity for the first Virginia trial court independently

to declare a mistrial.              Because there was no valid basis for the

first Virginia trial judge’s sua sponte declaration of a mistrial,

Washington was entitled to the fundamental protections attendant

upon the Double Jeopardy Clause.                Further, in light of the factual

record, we believe that this conclusion is inescapable.                      Although

we are mindful not to simply substitute our opinion for that of a


                                            38
state court, we believe that it would be unreasonable for any

court,   including   the   Supreme   Court   of   Virginia,   to   conclude

otherwise. Such a conclusion would lie “well beyond the boundaries

of permissible differences of opinion.”           Hardaway v. Young, 302,

F.3d 757, 762 (7th Cir. 2002), cert. denied, 538 U.S. 979 (2003).

     Based on this analysis, we agree with the district court that

habeas relief is proper.      Accordingly, we affirm the grant of a

writ of habeas corpus by the district court.



                                                                   AFFIRMED




                                     39
SHEDD, Circuit Judge, concurring in part and dissenting in part:

       The Supreme Court of Virginia found that Washington implicitly

consented     to    the   first   state      trial   court’s     declaration     of    a

mistrial by failing to object to the mistrial, and it therefore

held that his second trial did not violate his right under the

Double Jeopardy Clause of the Fifth Amendment.                     Commonwealth v.

Washington, 559 S.E.2d 636 (Va. 2002).                  In affirming the district

court’s grant of a writ of habeas corpus, the majority holds that

the    Virginia     supreme     court’s      decision     is    based   on    both    an

unreasonable application of clearly established federal law, as

determined by the Supreme Court of the United States, and an

unreasonable determination of the facts in light of the evidence

presented in the state court proceeding.

       This is a somewhat unusual case which could have been handled

better by the first trial judge and trial counsel.                  Moreover, as is

evident from the split opinion of the Virginia supreme court, the

state-court resolution could easily have been in Washington’s

favor.    However, our task is to apply the “highly deferential”

standard of review mandated by 28 U.S.C. § 2254(d), “which demands

that state-court decisions be given the benefit of the doubt,” Bell

v.    Cone,   125   S.    Ct.   847,   853     (2005)    (per   curiam)      (internal

quotation marks omitted), and which authorizes our intervention

into a state criminal proceeding “only when a state-court decision

is objectively unreasonable,” Woodford v. Visciotti, 537 U.S. 19,


                                          40
27 (2002) (per curiam).   Viewing the case in this light, I disagree

with both of the majority’s holdings.

     In my view, the Virginia supreme court’s application of

federal law is not objectively unreasonable.    Compare Washington,

559 S.E.2d at 639-40 (stating that “[t]he various United States

Courts of Appeals have held that a defendant’s consent to a

mistrial is implied when a defendant had an opportunity to object

to a mistrial but failed to do so” and applying this rule) with

United States v. Ham, 58 F.3d 78, 83-84 (4th Cir. 1995) (stating

that “a number of circuits have held that a defendant impliedly

consents to a mistrial if the defendant had an opportunity to

object to the mistrial but fails to do so” and applying this rule).

Although the majority places great reliance on its view that the

Virginia supreme court did not consider the “totality of the

circumstances,” I believe that (to the extent such consideration is

necessary) the majority misreads the Virginia supreme court’s

opinion.    A fair reading of that opinion shows that the Virginia

supreme court did, in fact, properly consider the circumstances of

the case.   See Washington, 559 S.E.2d at 637-38 (statement of the

operative facts); id. at 639 (noting the state-law requirements for

objecting in Virginia trial courts); id. (noting counsel’s admitted

failure to expressly object and that Washington “does not contend

that he was deprived of an opportunity to make a meaningful

objection”); id. at 640 (comparing counsel’s “clear and unequivocal


                                 41
objections” to other rulings in the case with her lack of such an

objection to the mistrial).

     I also believe that the Virginia supreme court’s factual

determinations, which are presumptively correct, see 28 U.S.C. §

2254(e)(1), are not objectively unreasonable.                The key factual

issue is not whether Washington’s counsel raised the issue of

double jeopardy while the mistrial was being considered: she

clearly did.      Rather, the key issue is whether she objected to the

mistrial -- that is whether she informed the trial judge that

Washington wished to proceed with the trial.             She clearly did not.

See, e.g., Ham, 58 F.3d at 84 (“If Swami had wanted the original

jury to decide the Rule 31(e) forfeiture issue, he should have

informed the court of this desire before it dismissed the jury.”).

The importance of this distinction is illustrated by the majority’s

criticism    of   the   trial   judge     (and   its   corresponding    finding

regarding manifest necessity) for failing to consider alternatives

to the mistrial.         Had counsel informed the trial judge that

Washington wanted to proceed with that jury, the trial judge

presumably   would      have   explored      other   alternatives.     However,

counsel did not press the issue of proceeding with the trial, and

the trial judge therefore did not conduct an extended analysis of

alternatives to the mistrial.




                                        42
      Because   the   Virginia   supreme   court’s   decision   is   not

objectively unreasonable, I would reverse the district court’s

grant of habeas relief.*




     *The majority also holds that the composition of this
appellate panel is not unconstitutional and that consideration of
Washington’s double jeopardy claim is not precluded by an adequate
and independent state procedural bar. I concur in these results.

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