Theodore A. Weston v. Peg Kernan, Warden

Opinion by Judge BEEZER; Dissent by Chief Judge WALLACE.

Petitioner Theodore Weston filed a petition for a writ of habeas corpus challenging his May 1990 state court conviction of forcible oral copulation. He contends that his conviction was barred by the Double Jeopardy Clause because the state trial court ended his first trial by declaring a mistrial without his consent and in the absence of manifest necessity.

The district court granted his petition on February 9, 1994. The district court had jurisdiction pursuant to 28 U.S.C. § 2254 and we have jurisdiction pursuant to 28 U.S.C. § 2253 . We affirm.

I

Weston was charged with three counts of forcible oral copulation (Cal.Penal Code 288a(c)), one count of robbery (Cal.Penal Code § 212.5(b)), and kidnapping for the purpose of committing the offense (Cal.Penal Code § 667.8). He was also alleged to have a prior conviction for forcible oral copulation and two prior prison terms (Cal.Penal Code § 667.6(a) and § 667.5(b)).

Weston’s first state trial began in March 1990. After four days of trial, the state trial court declared a mistrial without prejudice. Weston then moved to enter a plea of once in jeopardy and to dismiss the…

dissenting:

My colleagues conclude that Weston did not consent to the mistrial declared in his first trial, and that the mistrial was not declared for manifest necessity. On the contrary, the record shows that Weston consented to the first mistrial without prejudice. Even if that were not so, the state judge properly exercised his discretion and declared the mistrial on the grounds of manifest necessity. Furthermore, because any improper comments made by the state judge in the second trial were not unduly prejudicial, I would reverse the district court’s issuance of the writ.

I

The circumstances surrounding a mistrial will dictate whether the Double Jeopardy Clause bars retrial. If Weston consented to the mistrial, retrial is allowed. United States v. Bates, 917 F.2d 388, 392 (9th Cir.1991) (Bates). If Weston did not consent, retrial will be permitted only if justified by “manifest necessity.” Id. However, even if the mistrial was declared at Weston’s request, the Double Jeopardy Clause will still bar retrial if he “can show that the ‘conduct giving rise to the successful motion for mistrial was intended to provoke [him] into mov *640 ing for a mistrial.’ ” United States v.…

50 F.3d 633 Theodore A. WESTON, Petitioner-Appellee, v. Peg KERNAN, Warden, Respondent-Appellant. No. 94-15391. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 14, 1994. Decided Feb. 24, 1995. George F. Hindall III, Deputy Atty. Gen., San Francisco, CA, for respondent-appellant. Bruce E. Cohen, Berkeley, CA, for petitioner-appellee. Appeal from the United States District Court for the Northern District of California. Before: WALLACE, Chief Judge, PREGERSON and BEEZER, Circuit Judges. Opinion by Judge BEEZER; Dissent by Chief Judge WALLACE. BEEZER, Circuit Judge: 1 Petitioner Theodore Weston filed a petition for a writ of habeas corpus challenging his May 1990 state court conviction of forcible oral copulation. He contends that his conviction was barred by the Double Jeopardy Clause because the state trial court ended his first trial by declaring a mistrial without his consent and in the absence of manifest necessity. 2 The district court granted his petition on February 9, 1994. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 2254 and we have jurisdiction pursuant to 28 U.S.C. Sec. 2253 . We affirm. 3 * Weston was charged with three counts…