United States Court of Appeals

For the First Circuit

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.
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STAHL, Senior Circuit Judge. This is an appeal from an

order of the United States District Court for the District of

Massachusetts, 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

second trial 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.

Applying 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

testified that Creighton held her against her will in his

apartment, beat her with his fists, slapped her repeatedly, 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 defense counsel's question

regarding the last time she had been under the influence of a

substance. The victim also testified that the medical examination
1At the probable cause hearing, the victim acknowledged using

heroin roughly three times a week but denied using heroin on the

day of the alleged incident.

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performed on her the night of her alleged rape indicated that the

physician had found no bruises.

Creighton testified 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 these people were 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 prosecutor returned to her initial question of

whether Creighton had left because he was afraid of something.
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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

are to disregard 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 the jury may

be excused.

Creighton: You just don't want the jury to know --

The Court: Mistrial.

Creighton: -- like she was.

The transcript quoted above fails to fully depict what

occurred in 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
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word mistrial, but I don't think the Jury knows what I meant by

that. I'd just as soon continue with this case and with this Jury,

unless there's an objection and somebody moves for a mistrial."

After conferring with Creighton, defense counsel moved for a

mistrial, explaining that although he "underst[ood] that [the

declaration of mistrial] was as the result of the conduct of [his]

client," 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

directive to stop. She then called back the jury and discharged

them from the case.

The following Monday, Creighton moved to dismiss the

indictments against him on the ground that a retrial would be

barred by the double jeopardy clause, and moved to recuse the judge

from presiding 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
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justice denied the petition. No appeal was taken to the full

court. Commonwealth v. Creighton, 666 N.E.2d 1298, 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 petition to

the single 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

from illegal 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 Commonwealth v. Creighton, No. 96-P-1898 (Mass. App.

Ct. Aug. 6, 1998) (unpublished opinion). It held that the manifest
2The 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 declaration 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).

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necessity test did not apply in these circumstances because

although the trial 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 had no

opportunity to consent to the trial court's sua sponte declaration

of mistrial 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 trial judge 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, 611
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(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

contained information which the judge considered both nonresponsive

and inadmissible." 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

filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254, asserting that his convictions after the second trial

violated his 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

claim was 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. 
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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.

AEDPA precludes the granting of habeas relief to a state prisoner,

unless the state court decision was "contrary to, or involved an

unreasonable application of, clearly established 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

court applies a legal principle different from the governing

principal set forth in Supreme Court cases, or if the state court

decides the case differently from a Supreme Court case on

materially indistinguishable facts. Bell v. Cone, 122 S.Ct. 1843,

1850, ___ U.S. ___ (2002) (citing 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 state court correctly identifie[d] the

governing legal principle from [Supreme Court] decisions but

unreasonably applie[d] it to the facts of the particular case."
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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 objectively

unreasonable as opposed to merely incorrect. Williams, 529 U.S. at

411 ("A federal 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 is reasonable."

Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001), cert. denied,

122 S.Ct. 282 (2001).

AEDPA also provides 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).
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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 manifest necessity and, alternatively, the trial judge's

conduct was intended to provoke Creighton to request a mistrial. 

A. Clearly Established Federal Law

The Double Jeopardy Clause of the Fifth Amendment

protects a criminal defendant against "repeated prosecutions for

the same offense" and affords the defendant the right "'to have his

trial completed by a particular tribunal.'" United States v.

Dinitz, 424 U.S. 600, 606 (1976) (quoting Wade v. Hunter, 336 U.S.

684, 689 (1949)); see also Oregon v. Kennedy, 456 U.S. 667, 671

(1982). The 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

justified by 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 when 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,
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made clear that "[t]he important consideration, for purposes of the

Double Jeopardy Clause, is that the defendant retain primary

control over the course to be followed in the event of such

[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

"intended to provoke the defendant into moving for a mistrial."

Kennedy, 456 U.S. at 679. 

With these principles in mind, we look to the state

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

find that the Appeals Court correctly identified the legal

principles set forth in Dinitz and its progeny as governing the

merits of Creighton's double jeopardy claim. Although the Appeals

Court relied heavily on state court decisions, those decisions

relied directly upon Supreme Court precedent, including Dinitz, for

the legal principles 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 Appeals
3Although it appears 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 requested the

mistrial and found that the trial judge's conduct did not evidence

bad faith. 

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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 Court case with facts "materially

indistinguishable" from those in the case before us. We hold,

therefore, that the state court'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 objectively unreasonable application of clearly

established Supreme Court precedent.3 We reiterate that the key

issue for double jeopardy purposes "is that the defendant retain

primary control over the course to be followed in the event 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

requested a mistrial. After conferring with his client,

Creighton's trial counsel availed himself of this opportunity and

requested a mistrial. Thus for double jeopardy purposes, Creighton
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had a choice "over the course to be followed" in his prosecution.

He could either have taken 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 mistrial before

the trial judge "rushed from 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 found 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 the
4Although the "Supreme Court has made clear . . . that AEDPA

precludes federal courts from disturbing state court judgments by

relying on precedents created by federal courts of appeals,"

Almanzar, 281 F.3d at 304 n.3, reference to factually similar cases

from inferior federal courts is appropriate in assessing the

reasonableness of a state court's application "when the relevant

Supreme Court rule is broad and applies to a kaleidoscopic array of

fact patterns." Rashad v. Walsh, 300 F.3d 27, 35 (2002). 

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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 reconsidered and reversed its order of

mistrial because "[u]ntil the jury is excused, the court may

reconsider its intention to declare a mistrial") (citing United

States v. Smith 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 610, 617 n.7 (7th Cir. 1989) ("While the

mistrial declaration 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

failed to object to a sua sponte declaration of mistrial, the court

explained that, even though the jury had been dismissed when the

mistrial was declared, "the court could have asked the jury to

remain while reconsidering its decision."). The federal cases

relied upon by Creighton do not hold otherwise and are all

factually distinguishable as the defendants in those cases were not
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provided with an opportunity to object or consent to a mistrial.

Lovinger, 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 Creighton 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 could take a

recess to "cool off" and return, at which time she could reconsider

her motion and provide defendant with an opportunity to be heard.

In the alternative, Creighton secondly contends that he

did not voluntarily request a mistrial 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 Dinitz and thus we find that

Creighton's argument is without merit. 424 U.S. at 609-10. 

In sum, the Appeals Court reasonably 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

barred absent a finding of judicial conduct intended to provoke

Creighton into requesting a mistrial. 
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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

must rebut the presumption of correctness of the Appeals Court's

factual determination by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). After reviewing the record thoroughly and

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 jury to disregard 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

prejudiced evidentiary rulings 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
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him of the use of the victim's medical examination, which would

have shown that he did not ejaculate during intercourse and that he

did not beat or slap her. However, Creighton himself testified

that he did, in fact, ejaculate during intercourse with the victim,

and the victim herself testified that her medical examination

indicated that no bruises were found. Even more damning,

Creighton'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 medical

examination, the defense counsel said "no." 

Moreover, Creighton's allegations of judicial bias are

belied by 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

repeated objections, that defense counsel would be permitted to

call Dr. DeFazio, the doctor who examined the victim after the

alleged rape, to testify regarding the results of the Johnson Rape

Kit and to impeach 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 charge. 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. 
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In sum, Creighton has pointed to no evidence in the

record that compels us to conclude 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

identified in 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.