                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0276n.06
                            Filed: April 13, 2007

                                           05-3586

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


GAREY SMITH,                                   )
                                               )
       Petitioner-Appellant,                   )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
WANZA JACKSON, Warden,                         )   SOUTHERN DISTRICT OF OHIO
                                               )
       Respondent-Appellee.                    )




      Before: BOGGS, Chief Circuit Judge, and DAUGHTREY and GIBBONS, Circuit
Judges.


       PER CURIAM. Petitioner Garey Smith is an Ohio prisoner who was convicted of six

counts of felonious assault and who, while he still had litigation pending in state court, filed

this action in federal court seeking habeas relief under 28 U.S.C. § 2254. Smith now

appeals the order of the district court dismissing his habeas corpus petition “without

prejudice to refiling after petitioner has exhausted his currently pending state court

remedies.” Because the record indicates that such exhaustion has now been achieved,

as the respondent concedes, and because the petitioner properly presented his federal

claim in the courts of Ohio, we vacate the district court’s order and remand the case for a

review of the petitioner’s double jeopardy claim on the merits.
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Smith v. Jackson

       Briefly summarized, the otherwise convoluted history of this case reflects that after

Smith was convicted by a jury in state court, his convictions were overturned by the Ohio

Court of Appeals based on a violation of his right to self-representation. In dicta, the

appellate court noted that prosecutorial misconduct might also have provided a basis for

reversal, but that “given [its] disposition of the [self-representation issue], th[at] issue ha[d]

been rendered moot.” State v. Smith, No. C-020610, 2004 WL 102285, at *7 (Ohio Ct.

App. Jan. 23, 2004) (Smith I). Prior to commencement of the retrial, Smith filed a motion

to dismiss the indictment, alleging that the prosecutorial misconduct identified by the

appellate court had so infected his first trial that he could not receive a fair trial the second

time around. That motion was denied, and Smith was convicted on some, but not all, of

the counts in the indictment.


       On appeal from the second set of convictions, Smith argued that the retrial should

have been barred by the Double Jeopardy Clause, a claim that the appellate court rejected,

noting that “[a] defendant’s double-jeopardy rights are not violated under the successive-

prosecution prong when he is retried after a reversal and remand, as long as the appellate

court did not reverse on the basis of insufficient evidence.” State v. Smith, 858 N.E.2d

1222, 1239 (Ohio Ct. App. 2006) (Smith II). The opinion further observed that “although

this court had warned the prosecutor that his misconduct in the first trial may have served

as grounds for reversal, the misconduct was not the basis for the reversal.” Id. at 1249

(footnote omitted). The result of this appeal was a partial affirmance of the convictions in

the trial court.

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05-3586
Smith v. Jackson

       In the meantime, prior to the commencement of the petitioner’s second trial in Ohio

state court, but after his motion to dismiss the charges against him had been denied, Smith

filed a pretrial habeas petition in federal district court, alleging that double jeopardy

principles forbade re-initiation of criminal proceedings against him. The magistrate judge

assigned to the case recommended that the district court decline to review the habeas

petition, first, because the petitioner’s motion to dismiss in state court was not overtly

based on the federal Double Jeopardy Clause and, second, because the petitioner still

retained the right to contest his double jeopardy claim in the pending state court

proceedings. The district court adopted this recommendation, invoked the procedure that

we approved in Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002), and stayed Smith’s

habeas petition pending the exhaustion of any state court remedies still available to him.

In response to the respondent’s motion to alter or amend that judgment, however, the

district court later dismissed Smith’s petition without prejudice and indicated that it could

be refiled following exhaustion of state remedies. From that order, Smith now appeals.


       The record indicates that the Ohio state courts have recently completed their review

of the petitioner’s double jeopardy claim. See State v. Smith, 858 N.E.2d 818 (Ohio 2006)

(Smith III) (rejecting appeal from Smith II for review). Given the respondent’s concession

on this point, considerations of judicial efficiency militate against affirmance of the district

court’s dismissal of Smith’s petition, an action that would necessitate a refiling of

documents in the district court in order to place before that court the same issues that have

already been raised. Instead, simply vacating the district court’s order of dismissal and

                                             -3-
05-3586
Smith v. Jackson

remanding the matter to that court would allow an expeditious review of the substantive

constitutional issue presented.


       Moreover, we conclude that consideration of the merits of Smith’s double jeopardy

claim is warranted. Despite the magistrate judge’s conclusion, subsequently adopted by

the district court, that the petitioner had not fairly raised the claim in the state trial court, the

record establishes that Smith raised a double jeopardy argument in a supplemental motion

to dismiss and at a hearing on various motions held prior to the commencement of his

second trial. At the pre-trial hearing the petitioner, proceeding pro se, informed the state

trial judge, “[T]he allegations that I made against the prosecution office is [sic] serious, and

basically, it kind of speaks for itself. The grounds that I’m using to argue that motion, your

Honor, is double jeopardy, and in the interest of justice.” Later, during that same pretrial

hearing, Smith stated:


       The grounds that I asked for on double jeopardy grounds, is that when the
       conduct of the prosecution is intentional and blatant, both courts have looked
       at that as a bar to retrial under the double jeopardy grounds. They know
       that. The Ohio Supreme Court has said when you get a mistrial because of
       prosecutorial misconduct, then you don’t have a right to retry, to defend it.


       The trial judge clearly understood the nature of the allegation, ruling that “[t]he

motion to dismiss because of prosecutorial misconduct is not well-taken . . . [and is]

overruled.” Moreover, the Ohio Court of Appeals, addressing the issue after the conclusion

of the second trial, recognized that the claim was grounded in the Double Jeopardy Clause

and further cited a federal court decision, United States v. Wallach, 979 F.2d 912 (2d Cir.

                                                -4-
05-3586
Smith v. Jackson

1992) (discussing Oregon v. Kennedy, 456 U.S. 667 (1982)), for the proposition that

“[s]ome courts[, although not Ohio courts,] have found double jeopardy a bar to successive

prosecution when reversal after an appeal is based upon prosecutorial misconduct.” Smith

II, 858 N.E.2d at 1249. Regardless of the ultimate merits of the petitioner’s claim – a

determination that we need not make at this stage of the proceedings – it is clear that

Smith has presented his federal constitutional claim to the state courts of Ohio and that

those tribunals have concluded their reasoned review of the issue presented.


       For the reasons set out above, we VACATE the judgment of the district court and

REMAND the case to that court for further proceedings.




                                          -5-
