# United Stat es Court of Appeals For the First C ircuit

No. 02-1244 DONALD N. CREIGHTON, Petitioner, Appellant,

v. TIMOTHY HALL, SUPERINTENDENT OF MCI NORFOLK; THOMAS REILLY, ATTORNEY GENERAL OF MASSACHUSETTS,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge ]

Before Torruella, Circuit Judge , B. Fletcher,* Senior Circuit Judge , and Stahl, Senior Circuit Judge .

Greg T. Schubert for appellant. James J. Arguin , Assistant Attorney General, with whom Thomas F. Reilly , Attorney General, was on brief for appellees.

November 6, 2002

____________________ *Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by designation.-2- STAHL, Senior Circuit Judge . This is an appeal from an order of the United States District Court for the District of Massachuset ts, entered on February 13, 2002, denying Donald Creighton's petition for habeas relief under 28 U.S.C. § 2254. After a Massachusetts Superior Court judge declared a mistrial, Creighton was retried by a newly impaneled jury and convicted of rape, kidnapping, and assault and battery. He asserts that the secondtrial and the resulting convictions violated his federal constitutional right against double jeopardy. Both the state Superior and Appellate Courts held that the second trial and ultimate convictions were not barred by the double jeopardy clause. Appl ying the highly deferential standard of review prescribed by AEDPA, we affirm. I

On October 15, 1992, a grand jury indicted Creighton for rape, kidnapping, and assault and battery. Creighton's jury trial began on January 27, 1993. On direct examination, the victim testifiedthat Creighton held her against he r w ill in his apartment, beat her with his fists, slapped her repeatedl y, and then raped her. On cross-examination, after the victim denied being under the influence of any substance on the day in question, the court sustained an objection to defe nse counsel's question regarding the last time she had been u nder the influence of a substance. The victim also testified that the medical examination1 At the probable cause hearing, the victim acknowledged using

heroin roughly three times a week but denied using heroi n on the day of the alleged incident. -3- performed on her the night of her alleged rape indicated that the physician had found no bruises.

Creighto n te stified in his own defense. On direct examination, he testified that he and the victim had engaged in consensual intercourse, after which she demanded $300. He denied

ever holding the victim against her will or abusing her in any way. He also testified that after he refused to pay her, she threatened to accuse him of rape and to return with a male friend presumably to obtain the money. Approximately twenty minutes after the victim departed, Creighton left his apartment.

On cross-examination, after the prosecutor asked Creighton about why he left his apartment after the incident, the following exchange occurred: Prosecutor: Were you afraid thes e people we re going to come back and get you, is that why you left? Creighton: I had mixed feelings. You know, I felt very much

-- I felt that I was in the dark. You know, I felt that I was deceived. Prosecutor: Yes? Creighton: You know I didn't know what her motives were. Prosecutor: Sure? Creighton: I didn't know, at this time, that she used drugs. She shot heroin and stuff. 1 Prosecutor: You didn't know that, no? Creighton: No.

The prose cutor returned to her initial question of whether Creighton had left because he was afraid of something.-4-

After Creighton's response, the court sua sponte provided the following curative instruction: "Let me just tell the Jury, on that reference, to the use of drugs. There's absolutely no evidence that the alleged victim in this case, used or uses drugs, and you

a re to dis regard that, and you're not to mention that in your deliberations. Go ahead."

The following colloquy then occurred: Prosecutor: Thank you. Creighton: There's testimony -- The Court: Hold on. Wait a minute, Mr. Creighton. Creighton: -- there's testimony of probable cause -- The Court: Mr. Creighton, stop it. Stop it! Creighton: -- that she used drugs. The Court: Okay. Bring him out right now and t he jur y may be excused. Creighton: You just don't want the jury to know -- The Court: Mistrial. Creighton: -- like she was.

The transcri pt q uoted above fails to fully depict what occurredin the courtroom. An audiotape of the proceedings, which is part of the record, reveals that as Creighton continued to speak

over the court's instructions not to do so, the trial judge's voice became progressively louder, and, at one point, she banged her fist

on the bench. Her last "Stop it" was considerably louder than her previous declarations and voiced in a high-pitched, excited tone.

After ordering the mistrial and as she headed for chambers, she held Creighton in contempt of court. Two minutes after departing the courtroom, the judge returned and, in Creighton's but not the jury's presence, stated: "Okay, I said the-5-

wordmistrial, but I don't think the Jury knows what I meant by that. I'djust as soon continue with this case and with this Jury, unless the re's an objection and somebody moves for a mistrial." Af ter conferring with Creighton, defense counsel moved for a

m is trial, explaining that although he "underst[ood] that [the declaration of mistrial] was as the result of the conduct of [his] clie nt," he believed that the declaration coupled with Creighton being held in contempt of court in front of the jury prejudiced the jury against Creighton and no instruction would remove that prejudice. The trial judge agreed and granted Creighton's request for a mistrial and admonished Creighton not to let it happen again. Creighton attempted to respond, but this time he heeded her directiv e to stop. She then called back the jury and discharged them from the case.

The followin g Mon day, Creighton moved to dismiss the indictments against him on the ground that a retrial would be barredby the double jeopardy clause, and movedto recuse the judge frompresiding over the second trial. The court denied both motions. Seeking review of his motion to dismiss, Creighton moved to stay the second trial and filed a petition, under Mass. Gen. Law ch. 211, § 3, along with the audiotape of the relevant portion of the trial proceedings, to the single justice of the Massachusetts Supreme Judicial Court (" SJC"). After a hearing, the single-6-

justice denied the petition. No appeal was taken to the ful l court. Commonwealth v. Creighton , 666 N.E.2d12 98, 1298 (Mass. 1996). Creighton was subsequently retried by a newly impaneled jury, with the same Superior Court judge presiding, and convicted of rape, kidnapping, and assault and battery. II A. Reconsideration of First Petition to Dismiss

On June 16, 1995, Creighton filed a second petitio n t o t he sin gle justice of the SJC, seeking reconsideration of the denial of his first petition. The single justice again denied relief. The SJC affirmed that decision on the procedural ground that Creighton had failed to appeal the denial of his initial petition. In January 1997, Creighton filed a motion for release fromillegal incarceration, pursuant to Mass. Crim. Pro. R. 30[a], arguing that the second trial was barred by double jeopardy. After a hearing the Superior Court denied this motion. B. Direct Appeal

Creighton appealed his convictions and the Superior Court's denial of his motion for release from illegal incarceration to the Massachusetts Appeals Court. The Appeals Court affirmed the underlying convictions and the denial of his motion for a new trial. See Co mmonwe alth v. Creighton , No. 96-P-1898 (Mass. App. Ct. Aug. 6, 1998) (unpublished opinion). It held that the manifest2 The court explained: When the judge returned to the bench--having stifled [Creighton]'s attempt inappropriately to sully the victim's reputation--her inclination to continue the trial with the same jury was ill-advised. However, although it was the judge who first uttered the word "mistrial," it was defense counsel who pulled the plug and urged the dec lar ation of a mistrial. In these circumstances, we need not apply the manifest necessity test. Where the defendant originates the request for a mistrial or expresses agreement with the idea, ordinarily double jeopardy will not prevent a retrial. Id. at 2 (citations omitted). -7- necessity test did not apply in these circumstances because although the tri al judge first said "mistrial," Creighton effectively "pulled the plug" on the first trial by requesting the mistrial. Id. at 1-2. 2 The court rejected Creighton's claim that the manifest necessity test should apply because he ha d no opportunity to consent to the trial court's sua sponte declaration of m istria l before she "'rushed from the bench,'" reasoning that the trial judge was entitled to "cool off," and, in any case, the judge returned and gave Creighton a full opportunity to be heard. Id. at 2-3. Finally, finding that the trial judge's "conduct did not evidence any bad faith," the court rejected Creighton's contention that the record demonstrated that the t rial j udge had "'lied'" to the jury or acted in such a way as to bar a retrial. Id. at 1 (citing United States v. Dinitz , 424 U.S. 600, 61 1-8-

(1976)). Finally, the Appeals Court rejected Creighton's challenge to the trial judge's sua sponte instruction to the jury regarding the victim's alleged drug use, explaining that these "inappropriate remarks were made on cross-examination and that his answers containedinformation which the judge considered both nonresponsive andinadmissible." Id. at 3 (citations omitted). His application for further appellate review to the SJC was denied on October 27, 1998. C. District Court's Memorandum of Decision

After exhausting his state remedies, Creighton timely fileda petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his convictions after the second trial violatedhis federal constitutional right against double jeopardy. Creighton v. Hall , No. Civ.A. 99-12215, 2002 WL 745843 (D. Mass. February 12, 2002). In dismissing the petition, the district court held that the state court's denial of Creighton's double jeopardy claimwas not contrary to, or a result of an unreasonable application of, clearly established Supreme Court precedent. The court agreed that Creighton had "pulled the plug" on the first trial by requesting the mistrial and, thus, the manifest necessity test did not apply. The court also held that Creighton had failed to rebut by clear and convincing evidence the state court's factual determination that the trial judge's conduct did not evidence bad faith.-9- Creighton filed a timely notice of appeal on February 26, 2002. III

We review the federal district court's denial of a writ of habeas corpus de novo . See Almanzar v. Maloney , 281 F.3d 300, 303 (1st Cir. 2002).

The Anti-terrorism and Effective Death Penalty Act ("AEDPA") significantly limits the scope of federal habeas review. AEDPAprecludes the granting of habeas relief to a state prisoner, unless the state court decision was "contrary to, or involved an unreasonable application of, clearly estab lish ed Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A decision is "contrary to" federal law if the state

c ourt applies a legal principle different from the gover nin g principal set forth in Supreme Court cases, or if the state court d eci des the case differently from a Supreme Court case on materially indistinguishable facts. Bell v. Cone , 122 S.Ct. 1843, 1850, ___ U.S. ___(2002) (c iting Williams v. Taylor , 529 U.S. 362, 405 (2000)).

To hold that a state court's decision is an "unreasonable application" of clearly established federal law, the federal habeas court must find that "the st ate co urt correctly identifie[d] the go vernin g legal principle from [Supreme Court] decisions but unreasonably applie[d] it to the facts of the particular case."-10-

Bell , 122 S.Ct. at 1850. In making this determination, a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams , 529 U.S. at 409. We are mindful that in order to grant habeas relief the state court decision must be o bjec tively unreasonable as opposed to merely incorrect. Williams , 529 U.S. at 411 ("Afederal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."). Finally, our focus "is not how well reasoned the state court decision is, but whether the outcome i s reas onable." Hurtado v. Tu cker , 245 F.3d 7, 20 (1st Cir. 2001), cert. denied , 122 S.Ct. 282 (2001).

AEDPAalso pro vides habeas relief when the state court decision 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)(2). However, the federal habeas court shall presume that the state court's determination of factual issues is correct and petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1) .-11- IV With this framework in mind, we turn now to Creighton's claims. Creighton maintains that the Double Jeopardy Clause barred his retrial because the court declared the mistrial sua sponte absent m a nifest necessity and, alternatively, the trial judge's conduct was intended to provoke Creighton to request a mistrial. A. Clearly Established Federal Law

The Double Je opa rdy Clause of the Fifth Amendment protects a c rimi nal defendant against "repeated prosecutions for the same offense" and affords the defendant the right "'to have his trial completed by a particular tribun al.'" United States v. Dinitz , 424 U.S. 600, 606 (1976) (quoting Wade v. Hunter , 336 U.S. 684, 689 (1949)); see also Oregon v. Kenned y , 456 U.S. 667, 671 (1982). T he Supreme Court has directly addressed the double jeopardy implications of a trial court's sua sponte declaration of a mistrial. If a judge declares a mistrial over the objection of the defendant, a retrial will be barred unless the mistrial was justifiedby manifest necessity. Kennedy , 456 U.S. at 672; Dinitz , 424 U.S. at 606-607. If, on the other hand, a defendant requests or consents to a mistrial, the "manifest necessity" standard does not apply and the Double Jeopardy Clause ordinarily will not bar retrial , even wh en the request or consent to a mistrial is in response to prosecutorial or judicial error. Kennedy , 456 U.S. at 672-73; Dinitz , 424 U.S. at 607-10. The Supreme Court, in Dinitz ,-12-

made clear that "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain p rima ry contro l over the course to be followed in the event of s uc h [judicial or prosecutorial] error." 424 U.S. at 609. However, the Supreme Court has recognized a narrow exception to this rule: A retrial will be barred where the defendant's request or consent to

a mistrial is necessitated by judicial or prosecutorial conduct "inten ded to provoke the defendant into moving for a mistrial." Kennedy , 456 U.S. at 679.

With these principles in mind, we look to th e stat e court's decision and ask whether the decision was contrary to, or

an objectively unreasonable application of, the above-mentioned Supreme Court precedents. B. Contrary To Clearly Established Federal Law

We can easily dispose of the "contrary to" prong as we findthat the Appeals Court correctly iden tified the legal principles set forth in Dinitz and its progeny as governing the merits of Creighton's double jeopardy claim. Although the Appeals Cour t relied heavily on state court decisions, those decisions relieddirectly upon Supreme Court precedent, including Dinitz , for the le gal pr inciples outlined above. See , e.g. , Commonwealth v. Andrews , 530 N.E.2d 1222, 1225-26 (1988) (citing Dinitz , 424 U.S. 600); Jones v. Commonwealth , 397 N.E.2d 1187, 1192 (1979) ( rev'd on other grounds , 400 N.E.2d 242 (Mass. 1980)). Moreover, the Appeals3 Although i t appe ars that the Appeals Court might have held,

in the alternative, that there was manifest necessity to declare a mistrial, we need not reach that question because we find that the state court reasonably concluded that Creighton requ es ted the mistrial and found that the trial judge's conduct did not evidence bad faith. -13- Court itself cited to Dinitz in the portion of its opinion addressing the applicability of the bad faith exception. Finally,

we have found no Supreme C ourt c ase with facts "materially indistinguishable" from those in the case before us. We hold, therefore, that the stat e cour t's decision was not "contrary to" clearly established federal law. C. Unreasonable Application of Clearly Established Federal

Law We also conclude that the state court's decision did not result from an objec tivel y unreasonable application of clearly establ ish edSupreme Court precedent. 3 We reiterate that the key issue for double jeopardy pu rposes "is that the defendant retain primary control over the course to be followe d in the e vent of" judicial error that necessitates a mistrial. Dinitz , 424 U.S. at 609. Here, two minutes after sua sponte declaring a mistrial and leaving the courtroom, but before discharging the jury, the trial judge returned to the courtroom and stated her desire to continue with the first trial unless either party objected to continuing or reques ted a mistrial. After conferring with his client, Creighton's trial counsel availed himself of this opportunity and requesteda mistrial. Thus for double jeopardy purposes, Creighton-14-

had a choice "over the course to be followed" in his prosecution. He could either have t aken his chances with the first trial, the possibility of a reversal on appeal if convicted, and a subsequent retrial, or he could, as he did, have ended the first trial. The choice was his to make. Because the trial judge returned to the bench and provided Creighton with an opportunity to be heard before the jury was discharged, we cannot say that the Appeals Court decision resulted from an objectively unreasonable application of Dinitz and its progeny.

In response, Creighton raises two arguments, neither of which we find persuasive. First he argues that because he had no meaningful opportunity to object or consent to a m istria l before the trial judge "rus hed fr om the bench," the Appeals Court unreasonably held that the manifest necessity test did not apply. According to Creighton, the mistrial was a fait accompli the moment the trial judge left the courtroom and, accordingly, his request for a mistrial after she returned is without legal significance.

We disagree. Not only does Creighton fail to cite to any Supreme Court cases, and we have fo und none, supporting this proposition, he also fails to explain why the trial judge's departure is dispositive. Insofar as he contends that the court's utterance is somehow talismanic or that the court lacks jurisdiction or discretion to reconsider her order of mistrial once she left the courtroom, existing federal case law supports the4 Although the "Supreme Court has made c lear . . . that AEDPA

precludes federal courts from disturbing state court judgments by relying on prec edents created by federal courts of appeals," Almanzar , 281 F.3d at 304 n.3, reference to factually similar cases frominferior federal courts is appropriate i n as sessing the reasonab lene ss of a state court's application "when the relevant Supreme Court rule is broad and applies to a kaleidoscopic array of fact patterns." Rashadv. Walsh , 300 F.3d 27, 35 (2002). -15- opposite conclusion. 4 See, e.g. , United States v. Segura-Gallegos , 41 F.3d 1266, 1271 (9th Cir. 1994) (holding that no error occurred where the trial court recons ide red and reversed its order of mi str ial because "[u]ntil the jury is excused, the court may reconsider its intention to declare a mistrial") (citing United States v. Smi th 621 F.2d 350, 352 n.2 (9th Cir. 1980), cert. denied , 449 U.S. 1087 (1981)); Cambden v. Circuit Ct. of 2nd Judicial Cir. , 892 F.2d 61 0, 61 7 n.7 (7th Cir. 1989) ("While the mistrial declara tion alone was not a talismanic utterance, the discharge and dispersal of the jury rendered the mistrial a fait accompli ."), cert. denied , 495 U.S. 921 (1990)); c.f. United States

v. DiPietro , 936 F.2d 6, 11 (1st Cir. 1991) (in holding that mere silence constitutes tacit consent to a mistrial where the defendant failedto object to a sua sponte declaration of mistrial, the court explainedthat, even though the jury had been dismissed when the mistrial was declared, "the court could have asked the jury to

rema in w hile reconsidering its decision."). The federal cases reliedupon by Creighton do not hold otherwise and are all factually distinguishable as the defendants in those cases were not-16-

providedwith an opportunity to object or consent to a mistrial. Loving er , 845 F.2d 739; Brady v. Samah , 667 F.2d 224 (1st Cir. 1981). Given that the trial judge had not discharged the jury and that she returned and provided C rei ghton with an opportunity to request a mistrial, we do not see how the fact that the trial judge left the courtroom for a short recess affects the issue here: Whether Creighton "retained primary control over the course to be followed" in his case. In any case, we cannot say that it was an objectively unreasonable application of Dinitz and its progeny for the Appeals Court to conclude that the trial judge couldtake a

recess to "cool off" and return, at which time she couldreconsider her motion and provide defendant with an opportunity to be heard.

In the alternative, Creighton secondly contends that he didnot voluntarily request a mistri al because the trial judge's conduct forced him to a "Hobson's choice," and, therefore, his request for a mistrial has no legal significance. This very argument was raised and rejected in D initz and thus we find that Creighton's argument is without merit. 424 U.S. at 609-10.

In sum, the Appeals Court reason ab ly concluded that because Creighton had an opportunity to request a mistrial and did so, the manifest necessity test did not apply and retrial was not barredabsent a finding of judicial condu ct intended to provoke Creighton into requesting a mistrial.-17-

D. Unreasonable Determination of the Facts

Finally, Creighton challenges the Appeals Court's factual determination that the trial judge's conduct did not evidence bad faith. We reiterate that Creighton must clear a high hurdle before

we will set aside the Appeals Court's factual determination: He

mus t rebut the presumption of correctness of the Appeals Cou rt' s factual determination by clear andconvincing evidence. 28 U.S.C. § 2254(e)(1) . Afte r review ing the record thoroughly an d listening to the audiotape, the most that we can say is that the trial judge became excited only after Creighton failed to stop speaking over the court's repeated instructions not to do so.

Even were we to accept Creighton's view that the court's instruction to the jur y to d isregard his testimony regarding the victim's alleged drug use was improper, which we doubt, it is pure speculation that the court gave the instruction with the intent to provoke the mistrial. Creighton contends that throughout the trial, the trial court had aligned itself with the prosecution to convict him. He claimed this was evidenced by the court's prejudicedevidentiary rul ings and its attack on his credibility through its sua sponte jury instruction, all brought about by the court's realization that the Commonwealth would lose its case due to the victim's inconsistent testimony. There is no support for this in the record; in fact, the opposite appears to be true. To support his theory, Creighton claims that the trial court deprived-18-

himof the use of the victim's medical examination, which would have shown that he did not ejaculate during intercourse andthat he didnot beat or slap her. However, Creighton himself testified that he did, in fact, ejaculate during intercourse with the victim, andthe victim herself testified that her medical examination indicatedtha t n o bruises were found. Even more damning, Crei ghto n's defense counsel rejected the Commonwealth's offer to admit the victim's medical examination. And when asked by the court whether he planned on introducing the victim's med ical examination, the defense counsel said "no."

Moreover, Creighton's allegations of judicial bias are beliedby the court's numerous evidentiary rulings made in his favor over the Commonwealth's objections. For example, on the morning of the mistrial, the court ruled, over the Commonwealth's repeatedobjections, that defense counsel would be permitted to call Dr. DeFazio, the doctor who examined the victim after the allegedrape, to testify regarding the results of the Johnson Rape Kit and to imp each the victim's testimony that she did not have intercourse that day. The court also ruled that the victim could be recalled to the stand to be impeached with her prior prostitution cha rge . In addition, the record reflects that the judge had permitted defense counsel, on cross examination, to impeach the victim's credibility with a number of her prior convictions.-19- In su m, Cre ighton has pointed to no evidence in the recordthat compels us to c onclude that the trial judge acted in bad faith with intent to provoke him to request a mistrial. V We are not without concern about the circumstances of this case. Creighton had little choice but to request a mistrial after his sparring match with the court that took place in front of the jury. However, under 28 U.S .C. § 2254, it is immaterial whether we would have, in the first instance, decided the case differently. See Williams , 529 U.S. at 411. We only need to conclude, as we do, that the Appeals Court applied the principles ident ifiedin Dinitz to the facts of this case in an objectively reasonable manner. Finding that the state court decision was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, we affirm.