The opinion of the court was delivered by: District Judge Susan J. Dlott
Magistrate Judge Timothy Black
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR HABEAS RELIEF
This matter is before the Court on the Magistrate Judge's Report and Recommendation on pro se Petitioner Thomas Klein's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 ("Report") (doc. #20) and Klein's Objections*fn1 (docs. ##s 21, 22.) For the reasons below, the Court OVERRULES the Objections (docs. ##s 21, 22); ADOPTS the Report (doc. #20); and accordingly DENIES Klein's Petition for Writ of Habeas Corpus (doc. #3).
Klein has petitioned to vacate his upcoming state criminal trial, scheduled to begin on June 5, 2006,*fn2 on the grounds that subjecting him to retrial after his original February 2006 trial ended in a mistrial would violate the Double Jeopardy Clause of the Fifth Amendment to the Constitution. (See doc. #3 at 5.) The Clause, however, does not bar reprosecution after a mistrial if the mistrial was justified by some "manifest necessity" to preserve the ends of public justice. U.S. v. DiFrancesco, 449 U.S. 117, 130 (1980); Arizona v. Washington, 434 U.S. 497, 506 (1978). The Report finds that Klein's trial judge "exercised sound discretion in declaring a mistrial that was justified by manifest necessity," and also did not unreasonably apply the manifest necessity standard in denying Klein's subsequent motion to dismiss his upcoming retrial. (Doc. #20 at 24.)
Klein's trial judge declared a mistrial after Klein, during his pro se opening statement at the original trial, said the following:
The point I was trying to make is that they -- I'm already being treated like I'm Hannibal Lector*fn3 here, or you may see me fidget in my seat a little. I can't sit all the way back in my chair because I got this electrical shocker strapped to me. (See doc.#12 Ex. 1 (hereinafter "tr.") at 48-49.) In the course of these remarks, Klein lifted his shirt to reveal his stun belt to the jury. (Doc. #12, opinion on granting motion for mistrial (hereinafter "mistrial op.") at 1-3; see also doc. #20 at 22.) Klein was then an estimated 25 to 30 minutes into a statement during which -- over the prosecution's objections and the trial judge's admonishments -- he had repeatedly mischaracterized the evidence and law and appealed to the jury's sympathies by portraying himself as the innocent victim of a corrupt justice system. (See, e.g., doc. #20 at 2-3, 12, 16-19 and citations.)
The trial judge, in his opinion explaining the mistrial ruling, explained that Mr. Klein had attempted to "confuse the jury" with his initial remarks -- thus prejudicing the prosecution -- and gone on, by exposing his belt, to prejudice himself. (See id. at 12-13 and citations.) The judge reasoned that while he could have issued a curative instruction directing the jury to disregard the stun belt, that would have required him to explain why Klein was wearing the stun belt, and by extension "that Klein had been found to be a maximum security risk for escape." (Doc. #12, mistrial op. at 7-9.) He concluded that such an instruction would have been "plain error," albeit error invited by Klein, and that the mistrial was therefore "the only way to preserve the right to a fair and impartial trial to the defendant and the State" once the "sum and substance" of Klein's opening had "compromised" that right. (Id.)
The Magistrate Judge concurs with the trial judge's analysis, finding ample support in the trial record for a finding that jurors were potentially biased by Klein's actions. (Doc. #20 at 20-24.)
Klein objects to the Report on both procedural and substantive grounds, alleging both that the Magistrate Judge reviewed a fraudulent trial record and that the true record does not show that there was "manifest necessity" for a mistrial.*fn4 His objections are not well taken.
A. Transcript Forgery and Evidentiary Hearing Request
Klein's primary contention is that the Magistrate Judge's findings are based on a partially fabricated trial transcript and that this Court must stay the June 5th retrial to allow Klein to conduct an evidentiary hearing on what actually happened in the courtroom at the time his mistrial.*fn5 Specifically, Klein alleges that the following exchange -- which appears in the transcript ...