IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20765

JOSEPH MONTANO, 

 Petitioner - Appellant

v.

STATE OF TEXAS, 

 Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:15-CV-860

Before JONES, HAYNES, and OLDHAM, Circuit Judges.

PER CURIAM:*

After three days of trial, a state court declared a mistrial in Joseph 

Montano’s trial for theft from a non-profit. Montano now asserts through a 

federal habeas petition under 28 U.S.C. § 2241 that he cannot be retried 

without the Government violating the Double Jeopardy Clause of the United 

States Constitution. We agree with the district court that Montano implicitly 

consented to the mistrial and therefore AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2019

Lyle W. Cayce

Clerk

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No. 17-20765

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I. Background

The facts on this summary judgment appeal are largely undisputed.1 

Joseph Montano’s first state court trial for theft from a nonprofit organization 

ended in a mistrial. The mistrial came after one of the Government’s witnesses 

began unexpectedly making incriminating statements on cross-examination. 

The state trial judge stopped the witness from testifying, called a recess, and 

eventually sent the jury home for the day to return the next morning. 

The judge, Montano’s counsel, and the Government began conferring 

about what to do. They decided the witness would need counsel and arranged 

for a public defender to advise him. After the public defender left with the 

witness, the judge raised the possibility that the witness would invoke his Fifth 

Amendment right to silence. Montano’s counsel insisted that he needed to 

cross-examine the witness. The judge and both sides then discussed possible 

resolutions. Though the Government wanted only a short continuance, the 

idea of a mistrial became the focus. During the discussion, the public defender 

representing the witness returned and confirmed that the witness would 

invoke the Fifth Amendment. Montano’s counsel maintained that he needed 

to cross-examine the witness. At no point during the discussion did Montano’s 

counsel object to a potential mistrial. Eventually, the trial judge concluded 

that he would declare a mistrial. Montano’s counsel again did not object. 

Although the court reporter did not transcribe all of these proceedings, this 

recitation of facts was developed through testimony of those in attendance. 

Montano has not cited any record evidence on appeal that contradicts this 

timeline of events. 

 

1 We review de novo a district court’s grant of summary judgment, applying the same 

standard as the district court. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017) 

(citing Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)). We view 

all evidence in the light most favorable to Montano, the non-moving party. See id. at 328–29. 

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Before he could be tried again, Montano sought and was denied a pretrial 

writ of habeas corpus in Texas state court; he argued that a second trial would 

violate the Double Jeopardy Clause of the United States Constitution. The 

petition challenging the denial of the pretrial habeas petition was refused on 

appeal. The Texas Court of Criminal Appeals refused discretionary review 

originally and on a motion for rehearing. 

Next, Montano filed a pretrial 28 U.S.C. § 2241 habeas petition in federal 

court, again asserting that retrial would violate his Double Jeopardy Clause 

rights. The State moved to dismiss the § 2241 petition arguing, among other 

things, that the petition was premature because Montano did not exhaust his 

state court remedies. The district court agreed issued a memorandum and 

order dismissing the § 2241 petition. On appeal, we reversed the dismissal and 

remanded to the district court to address the merits. Montano v. Texas, 867 

F.3d 540, 546-47 (5th Cir. 2017). We concluded, among other things, that the 

record at that time was not sufficiently developed to allow consideration in the 

first instance of whether Montano impliedly consented to the mistrial. Id.

On remand, the State filed a motion for summary judgment arguing that 

Montano consented to the mistrial and that the mistrial was a manifest 

necessity. The district court granted the motion for summary judgment and 

denied Montano’s § 2241 petition. Montano timely filed a notice of appeal.

II. Discussion

Montano is not entitled to a writ of habeas corpus because he has not 

identified any potential Double Jeopardy Clause violation. Once a criminal 

defendant’s trial has begun, the trial court may not declare a mistrial except 

under certain circumstances; otherwise, re-trying the defendant violates the 

Double Jeopardy Clause. United States v. Palmer, 122 F.3d 215, 218 (5th Cir. 

1997). One of the exceptions to that general rule is when a defendant consents 

to a mistrial. Id. Consent can be either express or implied. Id.

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Only implied consent is relevant to this case. “If a defendant does not 

timely and explicitly object to a trial court’s sua sponte declaration of mistrial, 

that defendant will be held to have impliedly consented to the mistrial and 

may be retried in a later proceeding.” Palmer, 122 F.3d at 218. “The 

determination of whether a defendant objected to a mistrial is made on a caseby-case basis, and the critical factor is whether a defendant’s objection gave 

the court sufficient notice and opportunity to resolve the defendant’s concern.” 

United States v. El-Mezain, 664 F.3d 467, 559 (5th Cir. 2011) (citing United 

States v. Fisher, 624 F.3d 713, 717 (5th Cir. 2010)).

Montano never objected to a mistrial, despite multiple opportunities, and 

he thus impliedly consented. Montano contends that his counsel objected to a 

mistrial by telling the trial court that he needed to be able to cross-examine 

the witness. But that was not an objection to a mistrial; it was further support 

for it. The witness had already begun to testify on behalf of the Government 

but then began invoking his Fifth Amendment right. Montano would not be 

able to meaningfully cross-examine the witness so long as the witness invoked

the Fifth Amendment. The trial court’s decision to declare a mistrial was thus 

driven by Montano’s concerns. Montano had the opportunity to object to the 

trial court’s course and to clarify that he preferred continuing the case rather 

than having a mistrial. Indeed, the Government did just that, but Montano 

never raised such a concern either during the long afternoon where the mistrial 

concept was first raised or the next morning before the jury was dismissed. 

Because Montano did not object to the mistrial despite being given the 

opportunity to do so, he impliedly consented to the mistrial and the Double 

Jeopardy Clause does not bar retrial. See El-Mezain, 664 F.3d at 559; Palmer, 

122 F.3d at 218.

Consequently, we AFFIRM the district court.

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