NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

KIP HARTMAN, 

Petitioner-Appellee,

 v.

AUSTIN KNUDSEN; MARCIA BORIS, 

Respondents-Appellants.

No. 22-35694

D.C. No. 9:22-cv-00057-DLC

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, District Judge, Presiding

Argued and Submitted May 10, 2023

Seattle, Washington

Before: HAWKINS, W. FLETCHER, and IKUTA, Circuit Judges.

The State of Montana appeals the district court’s order granting Kip

Hartman’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 on double

jeopardy grounds. “We review de novo a district court’s decision granting or

denying a petition for a writ of habeas corpus filed pursuant to [28 U.S.C.]

FILED

MAY 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
§ 2241,” Wilson v. Belleque, 554 F.3d 816, 828 (9th Cir. 2009), and we review “[a]

judicial determination of manifest necessity . . . for abuse of discretion,” United

States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008). We affirm.

The district court did not err in granting Hartman’s petition for writ of

habeas corpus on double jeopardy grounds because the state trial court abused its

discretion in declaring a mistrial out of manifest necessity. The Double Jeopardy

Clause of the Fifth Amendment protects “a defendant’s valued right to have his

trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689

(1949). While this right “must in some instances be subordinated to the public’s

interest in fair trials designed to end in just judgments,” id., there must be a “high

degree” of necessity, referred to as “manifest necessity,” before a court may

conclude that a mistrial is appropriate over the objection of the defendant, Arizona

v. Washington, 434 U.S. 497, 505–06 (1978). Courts may properly find manifest

necessity “to declare a mistrial if an impartial verdict cannot be reached, or if a

verdict of conviction could be reached but would have to be reversed on appeal due

to an obvious procedural error in the trial,” Illinois v. Somerville, 410 U.S. 458,

464 (1973), or a mistrial is needed to “afford[] the prosecutor one full and fair

opportunity to present his evidence to an impartial jury,” Washington, 434 U.S. at

505.

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The trial court here did not identify any events giving rise to the high degree

of necessity for a mistrial that courts have previously recognized. There was no

obvious procedural error in the trial that would require reversal on appeal; the

record does not establish that Hartman’s counsel provided ineffective assistance of

counsel or that counsel had a conflict of interest with his client “that affected

counsel’s performance.” Mickens v.Taylor, 535 U.S. 162, 171 (2002) (emphasis

removed). Nor was the declaration of a mistrial necessary to protect the State’s

right to a fair trial, since the prosecutor agreed to cooperate to streamline the

remainder of the trial. Instead, the trial court determined that declaring a mistrial

was necessary because it had set a limited amount of time for trial and declined,

based on docket management concerns, to extend this time frame for a period

sufficient to allow Hartman to exercise his Sixth Amendment right to testify on his

own behalf. Such time-management concerns do not rise to the high degree of

necessity required before depriving Hartman of his “valued right to have his trial

completed by a particular tribunal.” Wade, 336 U.S. at 689. Moreover, because

the trial court did not “consider[] plausible alternatives” to declaring a mistrial, the

trial court deserves little deference for its decision. Chapman, 524 F.3d at 1082.

Accordingly, we conclude that the trial court abused its discretion in

declaring a mistrial, and the Double Jeopardy Clause bars a retrial of Hartman.

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AFFIRMED.

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