United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3409

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Evelyn Louise Long, *

*

Appellant, * Appeal from the United States

* District Court for the District 

v. * of Minnesota.

*

Hubert H. Humphrey, III, *

*

Appellee. *

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 Submitted: May 14, 1999

Filed: July 14, 1999

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Before McMILLIAN, BRIGHT, and FAGG, Circuit Judges.

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FAGG, Circuit Judge.

Evelyn Louise Long appeals the denial of her petition for writ of habeas corpus.

See 28 U.S.C. § 2254 (1996). We reverse.

Long stabbed her husband during a quarrel. At Long’s state court jury trial, the

main issue was whether Long acted in self-defense. Long’s husband testified Long

attacked him without provocation as he sat in a chair. On the other hand, Long testified

her husband pushed her roughly and she retreated to the kitchen, grabbed a knife, and

stabbed her husband when he came after her. The prosecutor called a police officer to

rebut Long’s testimony that her husband was standing when she stabbed him. The
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officer had interviewed Long after her arrest and summarized the encounter in a written

report disclosed to the defense before trial. The report stated Long “was lying on the

sofa when her husband pushed her, she then got up[,] went into the kitchen and

returned to the living room area with a knife, her husband then told her ‘go ahead and

do it’, L[ong] then stabbed her husband who was sitting down.” Shortly before the

officer took the stand, he informed the prosecutor the interview had also been taped.

The prosecutor promptly notified Long’s counsel and the court outside the jury’s

presence and also explained the tape contained “two small points” not included in the

officer’s report – first, Long said she went to the bathroom before going into the

kitchen, a point she denied at trial, and, second, Long said her husband had been

drinking at the time of the stabbing, a circumstance about which Long did not testify.

Long initially moved for a mistrial. In response, the prosecutor offered to either

waive rebuttal, play the entire tape and limit the officer’s testimony to foundational

issues, or not play the tape and limit the officer’s testimony to the written report. The

court instructed Long to listen to the tape and discuss her options with her counsel.

After doing so, Long withdrew the mistrial motion, stating the “jury was picked by the

defense” and she wanted “to have the jury hear the tape and let them evaluate it in the

way that they think . . . [they] need to.” The court acknowledged Long was making a

knowing, intelligent, and voluntary waiver of her objections to the tape’s late

disclosure, but stated, “I’m not willing to put you in that position.” Despite Long’s

desire to proceed, the court declared a mistrial on its own motion. 

When the state sought to retry Long, Long moved to bar retrial as a violation of

double jeopardy, arguing no manifest necessity required the trial court to grant a

mistrial over her objection. The trial court denied Long’s motion. After exhausting her

state court remedies, Long filed a petition for writ of habeas corpus, which the federal

district court denied. 
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On appeal, Long contends the district court should have granted her habeas

petition because the trial court’s declaration of a mistrial over her objection “resulted

in a decision that 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) (1996). We agree. 

Because § 2254(d)(1) directs this court to grant Long’s petition only if the trial

court’s decision was contrary to or involved an unreasonable application of clearly

established Supreme Court precedent, we must first identify the controlling case law.

When a trial court orders a mistrial over the defendant’s objection, the Supreme Court

has stated double jeopardy bars a retrial unless there was manifest necessity for the

mistrial. See Arizona v. Washington, 434 U.S. 497, 503-05 (1978); United States v.

Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). The Court has cautioned that manifest

necessity is a high degree of necessity, see Washington, 434 U.S. at 506, and that the

power to declare a mistrial over the defendant’s objection should be exercised only

“under urgent circumstances, and for very plain and obvious causes.” Perez, 22 U.S.

(9 Wheat.) at 580; accord Washington, 434 U.S. at 506 n.18.

Given the existence of clearly established Supreme Court precedent governing

Long’s claim, we must next decide whether the trial court’s decision was “contrary to”

or an “unreasonable application” of that precedent. See § 2254(d)(1). These terms are

undefined in § 2254, and, although we have not addressed the issue, their meaning and

application have been the subject of much debate among other federal courts of

appeals. See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 885-91 (3d Cir.

1999) (en banc), petition for cert. filed, (U.S. June 22, 1999) (No. 98-2050); Davis v.

Kramer, 167 F.3d 494, 500 (9th Cir. 1999), petition for cert. filed, 67 U.S.L.W. 3570

(U.S. Mar. 8, 1999) (No. 98-1427); O’Brien v. Dubois, 145 F.3d 16, 21-25 (1st Cir.

1998); Green v. French, 143 F.3d 865, 869-73 (4th Cir. 1998), cert. denied, 119 S. Ct.

844 (1999); Neelley v. Nagle, 138 F.3d 917, 922-24 (11th Cir. 1998), cert. denied, 119

S. Ct. 811 (1999); Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. 1996) (en banc),
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rev’d on other grounds, 521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751, 767-

69 (5th Cir. 1996). Because Long’s appeal does not present a pure question of law and

because the manifest necessity standard cannot be applied mechanically to require a

particular result in Long’s case, see Washington, 434 U.S. at 506, the parties concede

the trial court’s decision was not “contrary to” established Supreme Court precedent

under any circuit’s test. See, e.g., Drinkard, 97 F.3d at 768 (“contrary to” existing

precedent if state court made error of pure law); O’Brien, 145 F.3d at 25 (“contrary to”

if controlling case law requires different outcome either because of factual similarity

to state case or because general federal rules require particular result in particular case).

Thus, the resolution of Long’s appeal hinges on the unreasonable application

prong of § 2254(d)(1). The circuits also differ about what is unreasonable in the

application of the Court’s precedent. Some circuits hold a state court’s decision is

unreasonable if the state court applied controlling precedent in a manner all reasonable

jurists would agree was unreasonable, see Green, 143 F.3d at 870; Neelley, 138 F.3d

at 924; Drinkard, 97 F.3d at 769, while other circuits consider whether the decision is

“so offensive to existing precedent, so devoid of record support, or so arbitrary, as to

indicate that it is outside the universe of plausible, credible outcomes,” O’Brien, 145

F.3d at 25; accord Hall v. Washington, 106 F.3d 742, 749 (7th Cir.), cert. denied, 118

S. Ct. 264 (1997); cf. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1999)

(combining these two tests), cert. denied, 67 U.S.L.W. 3654 (U.S. June 14, 1999) (No.

98-1665). The Third Circuit has rejected both of these tests, stating that the reasonable

jurist test discourages the granting of relief by requiring federal habeas courts to hold

the state court acted in a way no reasonable jurist would under the circumstances and

that the outside-the-universe-of-plausible-outcomes test excludes all but those decisions

so off the mark that they approach judicial incompetence. See Matteo, 171 F.3d at

889. Instead, the Third Circuit holds “[t]he federal habeas court should not grant the

petition unless the state court decision, evaluated objectively and on the merits, resulted

in an outcome that cannot reasonably be justified under existing Supreme Court

precedent.” Id. at 890. 
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We find the Third Circuit’s approach persuasive. Accordingly, we must

objectively evaluate whether the trial court’s declaration of a mistrial resulted in an

outcome that cannot reasonably be justified under the manifest necessity standard.

“‘To the extent that inferior federal courts have decided factually similar cases,

reference to those decisions is appropriate in assessing the reasonableness . . . of the

state court’s treatment of the contested issue.’” Matteo, 171 F.3d at 890 (quoting

O’Brien, 145 F.3d at 25). In making this evaluation, our “mere disagreement with the

[trial] court’s conclusions is not enough to warrant habeas relief.” Id.

In Long’s case, the trial court stated it declared a mistrial because:

1) [Long] credibly denied any memory of her statement to [the police

officer]; 2) [Long] had testified without having had the opportunity to

refresh her memory by listening to the tape; 3) [Long’s] taped statement

both supported and contradicted testimony of both [Long] and the other

witnesses; 4) to have gone forward with the trial without using the tape

would have deprived both parties of crucial and significant evidence

supporting their respective cases; 5) to have gone forward with the trial

with the tape being played for the jury would have unfairly prejudiced

[Long] because regardless of any further explanation or instruction, the

jury would have been left with the impression that [Long] had lied in her

earlier testimony -- thus injecting, unfairly, a new element into the jury’s

deliberations.

In evaluating whether manifest necessity required this mistrial, “the critical inquiry is

whether less drastic alternatives were available,” United States v. Shafer, 987 F.2d

1054, 1057 (4th Cir. 1993); accord United States v. Givens, 88 F.3d 608, 612-14 (8th

Cir. 1996); United States v. Dixon, 913 F.2d 1305, 1313-15 (8th Cir. 1990), and they

were. Long’s counsel and the prosecutor presented the trial court with a variety of

mutually acceptable alternatives to mistrial. Of particular significance among the

various available options were the prosecutor’s offer to waive rebuttal altogether and

her alternative offer to limit her examination to the officer’s properly disclosed written
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report, which included Long’s earlier consistent and inconsistent statements and which

would have allowed the prosecutor to rebut Long’s testimony without allowing the

prosecutor to benefit from the tape’s improper disclosure. Additionally, Long was

clearly willing to waive any objection to the tape’s late disclosure or to any prejudice

resulting from playing the entire tape to the jury. See Dixon, 913 F.2d at 1312 n.3,

1315; Shafer, 987 F.2d at 1058. Any of these alternatives would have alleviated the

tape’s potential prejudice to Long and allowed the trial to continue. Given the range

of available and viable alternatives to mistrial, the trial court simply was not faced with

the sort of urgent circumstances or the high degree of necessity contemplated by the

manifest necessity standard. See Givens, 88 F.3d at 612-14; Dixon, 913 F.2d at 1313-

14; Shafer, 987 F.2d at 1057-59. Thus, we conclude the trial court’s decision,

evaluated objectively and on the merits, was an unreasonable application of clearly

established Supreme Court precedent.

Because no manifest necessity justified the trial court’s declaration of a mistrial,

Long’s retrial is barred by double jeopardy. We reverse the district court’s order and

remand with instructions to grant the writ of habeas corpus. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.