                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0134p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                             Petitioner-Appellant, -
 GEORGE FULTON,
                                                      -
                                                      -
                                                      -
                                                          No. 07-3434
          v.
                                                      ,
                                                       >
 ERNIE MOORE, Warden,                                 -
                             Respondent-Appellee. N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Cincinnati.
                      No. 05-00316—Susan J. Dlott, District Judge.
                                    Argued: January 29, 2008
                                Decided and Filed: April 1, 2008
                   Before: GUY, GILMAN, and McKEAGUE, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Katherine A. Szudy, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
M. Scott Criss, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: Katherine A. Szudy, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for
Appellant. Michael Scott Criss, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
                                       _________________
                                           OPINION
                                       _________________
        RALPH B. GUY, JR., Circuit Judge. Petitioner George Fulton appeals the district court’s
denial of his application for habeas corpus under 28 U.S.C. § 2254. His habeas claim of double
jeopardy stems from the Clermont County, Ohio trial court’s sua sponte declaration of a mistrial
after a jury was impaneled but before opening arguments in his criminal trial. The mistrial was
ordered when, after the prosecution’s amendment of dates in the indictment, Fulton’s counsel
requested a continuance of an uncertain length.
       Fulton’s second trial was to the bench and resulted in a conviction on charges of gross sexual
imposition and rape, followed by the imposition of a life sentence.
       Because the requisite high degree of necessity existed for the mistrial, we hold that Fulton’s
Fifth Amendment guarantee against double jeopardy was not violated. The district court is affirmed.



                                                 1
No. 07-3434              Fulton v. Moore                                                                              Page 2


                                                            I.
        This case presents a unique set of circumstances to consider in deciding whether a criminal
defendant was subjected to double jeopardy in violation of the Fifth Amendment. The question we
must answer is if a mistrial, granted for the benefit of—yet objected to by—the defendant, can meet
the requirements of manifest necessity as set forth in Arizona v. Washington, 434 U.S. 497, 515-16
(1978).
        A jury trial commenced in the Clermont County, Ohio Court of Common Pleas on March
26, 2002, in the matter of State of Ohio v. George J. Fulton. The charges, as stated in the grand
jury’s indictment of December 20, 2000, were one count of gross sexual imposition and one count
of rape. The complainant was Fulton’s daughter.
        Because assigned judge William Walker was not available, Judge Ringland presided over
jury selection. After the jury was sworn and sent on a lunch break, prosecutor Chapman advised the
court that it had just confirmed with the complainant’s mother that the dates in the indictment of
May through September 1990 were off by a year and should be May through September 1991. The
prosecution requested   that the court allow it to amend the indictment under Ohio Rule of Criminal
Procedure 7D.1 Counsel for the defense opposed the motion, asserting that the court should examine
the Grand Jury record and that he “[thought] we ought to have an evidentiary hearing with, what I
believe is, [the complainant’s mother] testifying as to the reasons for this error in the date and/or
Officer Lacy of the Goshen Police Department.”
        The trial court granted the motion, stating on the record that it found no bad faith on behalf
of the prosecution in making the request. Mr. Haynes, counsel for the defense, interjected:
                MR. HAYNES:           I’m sorry to interrupt you but I just want to make—my
        understanding of the record, the way I understand this to have come down is, Mr.
        Chapman and I talked last night and had, at that point, a discussion about when these
        parties separated. George Fulton and Melissa, then, Fulton.
                And Mr. Chapman’s impression was that, it was in ‘89, they were separated
        for over a year before the divorce was final. I told him, flatly, that I didn’t think that
        was the case. And my understanding is that he has then, today, I guess, has had a
        conversation—or, since last night, anyway, had a conversation with Melissa Loggins,

        1
          Ohio Rule of Criminal Procedure 7(D) governs the amendment of an indictment, information, or complaint
and provides:
        The court may at any time before, during, or after a trial amend the indictment, information, complaint,
        or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any
        variance with the evidence, provided no change is made in the name or identity of the crime charged.
        If any amendment is made to the substance of the indictment, information, or complaint, or to cure a
        variance between the indictment, information, or complaint and the proof, the defendant is entitled to
        a discharge of the jury on the defendant’s motion, if a jury has been impanelled, and to a reasonable
        continuance, unless it clearly appears from the whole proceedings that the defendant has not been
        misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the
        defendant’s rights will be fully protected by proceeding with the trial, or by a postponement thereof
        to a later day with the same or another jury. Where a jury is discharged under this division, jeopardy
        shall not attach to the offense charged in the amended indictment, information, or complaint. No
        action of the court in refusing a continuance or postponement under this division is reviewable except
        after motion to grant a new trial therefor is refused by the trial court, and no appeal based upon such
        action of the court shall be sustained nor reversal had unless, from consideration of the whole
        proceedings, the reviewing court finds that a failure of justice resulted.
(Emphasis added.)
No. 07-3434           Fulton v. Moore                                                              Page 3


       now, formerly Melissa Fulton, and that she had then said, “No, that’s not when we
       separated. It was in 1990.” But that she had led Mr. Chapman to believe that they
       were separated for over a year before the divorce was filed and I think that that goes
       directly to her credibility.
              THE COURT:            Well, it may and that’s why you’ll be able to impeach
       her on that, if you’re able to, under 613. However, it does not preclude Mr.
       Chapman from making an amendment under 7D, which I will grant.
Judge Ringland then anticipated that the amendment might “catch [defense counsel] unaware,” and
gave Mr. Haynes the
       opportunity to prepare and to take the necessary time you need to prepare for the
       impeachment of the witnesses, as well as obtaining witnesses in support of your
       defense for this new time frame. So, how long do you need?
Mr. Haynes stated his intention to bring a motion to dismiss the amended indictment, as well as his
need to interview potential new witnesses as a result of the new dates. The following colloquy
ensued:
               THE COURT:              Are we talking within a week or two weeks or—
             MR. HAYNES:            No, I think we need to get the investigator out. It
       would have to be more than that.
              THE COURT:           All right. So, in lieu of denial of your motion to
       dismiss, Mr. Haynes, it’s my understanding you’re asking for additional time to
       prepare, is that correct?
               Mr. HAYNES:             Yes, I am, Your Honor.
                THE COURT:              All right. You shall have it. And we’ll just have to get
       this set up for a new trial date. Now, let me indicate that, because of the new date,
       I believe there was a—wasn’t there a review of some child CPS [Children’s
       Protective Services] records?
              MR. CHAPMAN:         Judge, there had been in the past a review conducted
       by Judge Walker. An in-camera review of CPS records that I had obtained from
       Hamilton County. When, I think, we looked, there were no CPS records in our
       county or in Butler County.
               ....
               THE COURT:            We need to raise that issue, again, with the trial judge
       to have him review the records, again, concerning any discrepancy in the dates and
       review the Grand Jury transcript for discrepancy in dates, to determine if there’s any
       particularized need.
              MR. HAYNES:           So, you’re not overruling my request for evidentiary
       hearing. You’re deferring that?
               THE COURT:             I didn’t say an evidentiary hearing. I said it needs to
       be an in-camera inspection by The Court to determine if there’s any particularized
       need. I don’t think an evidentiary hearing is required, at this point. I think a review
No. 07-3434           Fulton v. Moore                                                               Page 4


       of the transcripts and records will be all that’s required. Now, after that, if the judge
       feels it necessary, then he will—or may—if he wishes, ask for an evidentiary
       hearing.
               MR. HAYNES:             All right.
              THE COURT:              Now, in as much as this was sent over to me, as
       Administrative Judge, only because Judge Walker was unexpectedly unavailable and
       so, under the rules of superintendency, it goes back to the original judge.
                MR. CHAPMAN:          Then, Judge, my understanding is that The Court is
       going to grant a continuance under Rule 7D. Discharge the jury, declare a mis-trial,
       it will not be a count for double jeopardy, at this point, and then, the matter will be
       referred to Judge Walker. Maybe we can set a pre-trial next week to get oriented as
       to when we’re going to reschedule.
               THE COURT:              As far as I’m concerned, it is not a count that’s double
       jeopardy because I’ve indicated that what you did was—that no evidence of any bad
       faith—that you indicated the information as soon as you received it and, certainly,
       that’s for a reviewing court to review at a later point, but at this time, I’ll mistry the
       case with—and, again, it’s up to Judge Walker to determine if it’s double jeopardy
       but I would assume it would not be.
               MR. HAYNES:             You note our objection to that.
               THE COURT:              I note your objection, sir.
        The defense filed two motions more than three weeks later, on April 19, 2002: (1) for
disclosure of grand jury proceedings, and (2) to dismiss the indictment on grounds including the
alleged violation of Fulton’s guarantee against double jeopardy. Judge Ringland denied Fulton’s
motion to dismiss to the extent it relied on the statute of limitations in a one-sentence order issued
April 30, 2002, the same date a docket entry was made amending the dates in the indictment and bill
of particulars to 1991. He did not address Fulton’s double jeopardy argument again. Judge Walker
briefly addressed the issue in an order dated May 17, 2002, entitled “ENTRY GRANTING
DEFENDANT’S REQUEST FOR A CONTINUANCE OF TRIAL AND DISCHARGING THE
JURY,” reflecting the court’s action in granting an open-ended continuance of the trial and stating
that “[t]he Court further found that jeopardy should not attach to the offenses charged in the
amended indictment.” Judge Walker entered an order denying defendant’s motion to compel
disclosure of grand jury testimony on June 17, 2002. On July 3, 2002, he issued an order denying
Fulton’s motion to dismiss, concurring with Judge Ringland’s finding of no bad faith on the part of
the prosecution in requesting amendment of the indictment, and stating only “double jeopardy does
not attach by the retrial of this matter.”
        Fulton waived his right to trial by jury and was convicted on all charges by the court on
October 11, 2002, more than six months after the mistrial declaration. He received a life sentence
for the conviction of rape, a concurrent two-year sentence for the other charge, and was determined
to be a “Sexually Oriented Offender.” His multiple-claim direct appeal included the assertion that
his guarantee against double jeopardy had been violated, but that particular argument was not
addressed by the state court of appeals in denying the requested relief. Fulton again included the
double jeopardy claim in his discretionary appeal to the Ohio Supreme Court, but on March 3, 2004,
that court stated simply that Fulton’s leave to appeal was denied, and dismissed the appeal “as not
involving any substantial constitutional question.”
No. 07-3434           Fulton v. Moore                                                           Page 5


        Fulton’s petition for a writ of habeas corpus was filed on May 9, 2005, in the United States
District Court for the Southern District of Ohio, Western Division. The petition was filed by an
assistant state public defender and stated only one ground:
       The Double Jeopardy Clause of the United States Constitution barred the retrial of
       George Fulton after the trial court erroneously assumed that a manifest necessity
       existed for the sua sponte declaration of a mistrial.
The matter was referred to a magistrate judge, who issued a report recommending denial of Fulton’s
petition. The district court adopted the report and recommendation over Fulton’s objections, and
dismissed the petition in its entirety on March 8, 2007. That order also granted Fulton a Certificate
of Appealability, certified pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of the order would be
taken in “good faith,” and granted Fulton leave to proceed on appeal in forma pauperis upon a
showing of financial necessity. Fulton timely filed his notice of appeal on April 4, 2007.
                                                  II.
         We conduct a de novo review of the district court’s decision on petitioner’s habeas corpus
application. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000). Fulton’s petition was filed after
the 1996 passage of the Antiterrorism and Effective Death Penalty Act (AEDPA), which provides
in part that federal courts are to grant writs of habeas corpus with respect to state court judgments
where the adjudication of the claim:
               (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or
               (2) resulted in a decision that was based on an unreasonable determination
       of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The state asserts, citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000), and
Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998), that § 2254(d) applies here and that this court
may grant the writ only if the state court acted unreasonably in applying Supreme Court precedent
to the petitioner’s claim.
        In his final reply brief, Fulton argues that the state’s assertion relies on “outdated” case law
and is incorrect. He contends that the state courts simply did not assess the merits of his claim, and
that by its very terms, § 2254(d) does not apply as there was no adjudication of the claim in state
court. He cites to Wiggins v. Smith, 539 U.S. 510 (2003), for the proposition that under such
circumstances this court is not limited to granting the writ only if the state court’s application of
“clearly established Federal law” was “objectively unreasonable,” but must apply the standard of
review used prior to 1996. See Williams, 529 U.S. at 409. Accordingly, he claims that here, the
“pre-AEDPA de novo standard of review” is appropriate (quoting Clifford v. Chandler, 333 F.3d
724, 730 (6th Cir. 2003)).
        We need not decide this issue because whether we apply a de novo or deferential standard
of review to the determination made by the state court, we are convinced that Fulton’s second trial
did not subject him to double jeopardy.
No. 07-3434                Fulton v. Moore                                                                     Page 6


                                                          III.
        The Fifth Amendment provides that a person shall not be “subject for the same offence to
be twice put in jeopardy of life or limb.” U.S. CONST. AMEND. V.2 This civil right does not protect
only against being punished twice, but against being placed in jeopardy twice. Ball v. United States,
163 U.S. 662, 669 (1896) (defendant had been tried and acquitted prior to being improperly
subjected to a second trial). In a jury trial, jeopardy attaches when the jury is impaneled and sworn.
Serfass v. United States, 420 U.S. 377 (1975) (citing Downum v. United States, 372 U.S. 734
(1963)). Notwithstanding Judge Walker’s statements to the contrary or the prosecutor’s reference
to Ohio’s Rule 7(D), jeopardy had attached by the time the mistrial was ordered, as the petit jury had
been impaneled and sworn. Yet, although the Double Jeopardy Clause ensures the defendant’s right
against repeated prosecutions for the same offense, decades of Supreme Court decisions instruct that
the clause is not an absolute bar to retrial under any circumstances.
        Beginning with United States v. Perez, 22 U.S. 579 (1824), where the trial court discharged
a deadlocked jury without the defendant’s consent in a capital case, the Supreme Court has held on
numerous occasions that there are circumstances where the Fifth Amendment does not bar retrial.
Those circumstances are not definable, however, and the decision is left to the sound discretion of
the trial judge. Id. at 580. The right against double jeopardy “does not mean that every time a
defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end
in a final judgment.” Wade v. Hunter, 336 U.S. 684, 688-89 (1949).
         In United States v. Jorn, 400 U.S. 470 (1971), the court carefully considered under “what
circumstances retrial is to be precluded when the initial proceedings are aborted prior to verdict
without the defendant’s consent.” Id. at 480. In that case, the trial judge sua sponte declared a
mistrial when he determined that nonparty witnesses should have the opportunity to consult with
counsel prior to giving testimony that might lead to self-incrimination. The Jorn court looked to
Perez, quoting Justice Story’s “fountainhead” opinion concerning trial judges’ well-placed
discretion and stating their authority to declare mistrials “whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for the act, or the ends of public
justice would otherwise be defeated.” Perez, 22 U.S. at 580 (emphasis added). The question of
manifest necessity, as first articulated in Perez, “has since been applied by this Court as a standard
of appellate review for testing the trial judge’s exercise of his discretion in declaring a mistrial
without the defendant’s consent.” Jorn, 400 U.S. at 481 (citations omitted). The decision in Jorn
that reprosecution was barred by the Fifth Amendment turned largely on the court’s finding that the
trial judge acted abruptly, gave no consideration to a trial continuance, and allowed the parties no
opportunity to argue or even object.
         The Jorn decision discussed the previous decade’s decision in Gori v. United States, 367
U.S. 364 (1961). In Gori, the trial judge declared a mistrial sua sponte when he determined the
prosecution’s questioning of a witness might bring in evidence of past crimes committed by the
defendant. No abuse of discretion on the part of the trial judge was found in an analysis that
included a finding that the judge was acting in the interest of the accused. “Suffice that we are
unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the
defendant, to hold that its necessary consequence is to bar all retrial.” Gori, 367 U.S. at 369. In
reaching that conclusion, the court reasoned that “[w]here, for reasons deemed compelling by the
trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice
cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s
consent and even over his objection . . . .” Id. at 368.



        2
            That provision was found to be directly applicable to the States in Benton v. Maryland, 395 U.S. 784 (1969).
No. 07-3434              Fulton v. Moore                                                           Page 7


        In Washington, after a mistrial was declared by the trial judge, the petitioner filed his habeas
application seeking a bar to reprosecution. The district court’s grant of the petition was affirmed
by the Ninth Circuit. The Supreme Court reversed, holding the trial judge’s assessment of possible
juror bias was to be accorded a high degree of respect, that the record reflected the judge’s exercise
of discretion and supported a finding of a “high degree” of necessity, and that the record need not
contain an explicit finding of “manifest necessity.” Washington, 434 U.S. at 516-17. That decision
noted that completion of the trial by a particular tribunal, although a “valued right,” was one that at
times should be “subordinated to the public’s interest in fair trials designed to end in just
judgments.” Id. at 503 n.11.
        The state points to this court’s habeas decision in Walls v. Konteh, 490 F.3d 432 (6th Cir.
2007). The defense was putting on its case in Walls’s criminal trial in the Lucas County, Ohio Court
of Common Pleas on September 11, 2001, when the trial judge learned of the attacks in New York
and Washington, and the plane crash in Pennsylvania, along3 with reported information about a plane
containing a bomb heading from Cleveland toward Toledo. The judge excused the jury about a half
hour before the courthouse was closed, and later, in chambers, told defense counsel and the
prosecutor that “‘I have no idea what’s going to happen tomorrow, so at this point, I think we’ll
leave a message for the jurors not to return and just declare a mistrial.’” Walls, 490 F.3d at 435.
On appeal we concluded that although it was a “close case,” the trial judge did not act irrationally
in concluding that the attacks might prove too distracting for the jury. Id. at 438-39.
        In the instant case, the magistrate applied the factors set forth in Washington to determine
whether the judge exercised “sound discretion” in declaring the mistrial: whether the trial judge (1)
heard the opinions of the parties about the propriety of the mistrial; (2) considered the alternatives
to a mistrial; and (3) acted deliberately, instead of abruptly. Washington, 434 U.S. at 515-16. As
the magistrate noted, Judge Ringland did not specifically seek the parties’ opinions concerning the
propriety of a mistrial. He did, however, give the parties a full opportunity to voice their opinions
and objections to his intended course of action. He clearly had in mind certain alternatives to a
mistrial, as he asked defense counsel how long a period would be needed to prepare under the
amended indictment, demonstrating that he considered calling the jury back at a later date. Finally,
the magistrate found that “Judge Ringland did not act ‘abruptly’ in declaring a mistrial in this case.”
The magistrate noted that the judge had discussed the issue off the record with counsel, and went
on the record after
        engaging in a lengthy colloquy with the lawyers concerning the defense’s need to
        continue the trial to conduct a further investigation and to adequately prepare, as well
        as the need for the trial court to review in-camera the Children’s Protective Services
        Records and Grand Jury transcript. The Court cannot characterize the decision to
        discharge the jury as “abrupt.”
       The magistrate, finding it a “close case,” cited to Washington’s holding that there is no
formula the trial judge is required to follow prior to declaring a mistrial, and that the trial judge need
not make an explicit finding of “manifest necessity.” Washington, 434 U.S. at 515-16. He pointed
to Judge Ringland’s peculiar predicament of being “faced with having to continue the trial for an
indeterminate length of time in excess of two weeks to allow the defense to adequately prepare its
case and to allow the trial court to review in-camera the records of the Children’s Protective Services
and the Grand Jury transcript.” He further stated that there had been discussion of an evidentiary
hearing. It is also noteworthy that the defense had articulated its plan to file a motion to dismiss,
which would require weeks for briefing prior to its determination.



        3
            Toledo is in Lucas County.
No. 07-3434              Fulton v. Moore                                                                     Page 8


        There is no contention here that the mistrial or delay in trying the case benefitted the
prosecutor. It is clear that the ends of substantial justice would not have been attained if the case
had continued to trial on March 26, 2002. Although the defense did raise a general, preservative
objection to the trial judge’s actions, it appears the mistrial was declared solely as a result of the
defense’s request for more time—a request the court granted in a display of fairness to Fulton.4 We
also note the defense does not claim that the “particular tribunal” chosen in March 2002 represented
any advantage for him. The reality is that Fulton later waived trial by jury and, in part due to
defense motions and preparation, did not sit for trial before the bench until more than six months
after the jury was discharged. Fulton could not assert that a continuance of the March jury trial to
this extent would have been practicable.
        We agree with the magistrate judge that the trial judge in the present case (1) did not act
abruptly in declaring the mistrial; (2) although not expressly on the record, implicitly considered
alternatives to the mistrial in the form of recall of the jury at a later date—realistically the only
alternative to a mistrial; and (3) engaged in a discussion with the parties about the double jeopardy
implications of a mistrial. Washington, 434 U.S. at 515-16. It is clear to the court that Judge
Ringland had Ohio’s Rule 7D in mind, which specifically speaks to double jeopardy, see supra.
Additionally, his finding of “no bad faith on behalf of the state,” although perhaps not determinative
under the circumstances, supports a finding that he was considering the double jeopardy implications
of his ruling. See Oregon v. Kennedy, 456 U.S. 667, 676 (1982) (“Only where the governmental
conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant
raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his
own motion.”).
        We also note that Fulton has not claimed any specific prejudice as a result of the mistrial.
See Washington, 434 U.S. at 516 n.35 (citation omitted). In fact, the granting of the mistrial was
bottomed on consideration for the defendant and his need to revamp his trial strategy based upon
a one-year difference in the dates alleged in the indictment. Judge Ringland, who stated his belief
that the case would be sent back to Judge Walker, necessarily had to consider attendant scheduling
concerns, as well as the extended yet vague time line for the new preparations required by the
defense. His decision to discharge the jury cannot be characterized as irrational.
        Even on de novo review, the record supports the finding that the required “high degree” of
necessity existed for the ruling of Judge Ringland, who clearly was “best situated intelligently to
make such a decision,” Kennedy, 456 U.S. at 677 n.7 (citing Gori, 367 U.S. at 368), and employed
the discretion afforded him under the Fifth Amendment in discharging the jury. The district court
is AFFIRMED.




         4
          Although throughout these proceedings Fulton has insisted that his need for a continuance was limited to two
or three weeks, this is not borne out by the record.
