Robert E. Hartley, Jr. v. Stephen Neely, Pima County Attorney, Robert Corbin, Attorney General, State of Arizona

The district court denied Hartley’s petition for writ of habeas corpus. We affirm.

Hartley was released on his own recognizance after he sought, and was granted, a mistrial on the basis of prejudice resulting from prosecutorial misconduct. Prior to a second trial on the same charges, Hartley moved for dismissal of his indictment, claiming that further prosecution was barred by the double jeopardy clause of the Fifth Amendment. The motion was denied. Hartley then pursued his double jeopardy claim through the state court system. After the Arizona Supreme Court denied his petition for review he filed the petition for writ of habeas corpus now at issue.

The case presents a threshold question: Was the requirement of 28 U.S.C. § 2254 (b) that an applicant for a writ of habeas corpus have “exhausted the remedies available in the courts of the State” satisfied even though Hartley’s petition was made prior to the final judgment of a State court? We hold that in the case of a double jeopardy claim the exhaustion requirement may be satisfied before a final judgment was rendered in a State court.

The guarantees of the double jeopardy clause include not only protection from multiple…