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Fenstermaker v. Halvorson

United States Court of Appeals, Eighth Circuit

April 3, 2019

Russell J. Fenstermaker Petitioner - Appellant
v.
Kathy Halvorson, Warden, MCF-Faribault Respondent - Appellee

          Submitted: October 15, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

          SMITH, CHIEF JUDGE.

         Russell J. Fenstermaker was tried and convicted in Minnesota state court in January 2013. A couple of months earlier, a jury had been impaneled in the prosecution of the same charge against him, but the state trial court declared a mistrial before the trial actually began. The court found that a mistrial was a manifest necessity because an injury sustained by the prosecutor litigating the case appeared certain to delay the trial beyond the empaneled jury's term of service. Following his convictions, Fenstermaker appealed, challenging the trial court's denial of his motion to dismiss on double jeopardy grounds. The Minnesota Court of Appeals recognized that Fenstermaker's double jeopardy issue presented a "close case," but it ultimately concluded that the trial court did not abuse its discretion by declaring a mistrial out of manifest necessity. State v. Fenstermaker, No. A13-1082, 2014 WL 4290318, at *6 (Minn.Ct.App. Sept. 2, 2014). Fenstermaker petitioned the district court[1] for a writ of habeas corpus. The district court denied the petition, concluding the state court did not unreasonably apply clearly established federal law. Fenstermaker now asks this court to reverse the judgment of the district court and grant the writ. We decline to do so and affirm.

         I. Background

         The State of Minnesota charged Fenstermaker with first-degree and third-degree sexual assault. His trial was scheduled for Wednesday, November 14, 2012. On that day, a jury was selected and sworn in. Opening arguments were scheduled to start Friday, November 16. On Thursday, November 15, the State requested a continuance until Monday, November 19, because the assigned prosecutor had suffered a back injury and could not proceed with the trial as scheduled. The court granted the continuance.

         On Sunday, November 18, a supervising prosecutor notified the court that the assigned prosecutor was still at home, unable to walk, and on medication. The supervising attorney appeared in court on Monday. He reiterated the injured attorney's unavailability and also stated that no other prosecutor in the office had time to prepare for the trial. He emphasized that the assigned prosecutor's relationship with the witnesses and jury were critical to the case proceeding fairly. The State then moved for a mistrial.

         The State said it was willing to discuss other options, such as continuing the trial to the following week, as long as the assigned prosecutor could return by then. Fenstermaker's counsel opposed the motion for mistrial but said he was available the following week for a trial. The court then said it would make time for trial the following week, but only if a trial could be certain to begin. Upon reflection, however, the court granted the State's motion for mistrial. The court based its decision on the sudden and severe nature of the prosecutor's injury and the uncertainty of her availability the following week. The court also considered that the injury's occurrence on the eve of trial made it "virtually impossible" for another prosecutor to substitute. Resp. to Pet. for Writ of Habeas Corpus, Addendum Tr. Nov. 19, 2012, at 8, Fenstermaker v. Halvorson, No. 16-CV-0363 (D. Minn. Mar. 23, 2016), ECF No. 10-2. The trial court, noting it had been prepared to declare a mistrial sua sponte in light of the circumstances, expressed concern about the possible expiration of the jury's term of service before the case could finish.

         Trial was rescheduled and held about two months later with the original prosecutor on January 22, 2013. At trial, Fenstermaker moved to dismiss, arguing that the trial would violate his constitutional right not to be subject to double jeopardy. The court denied the motion. The jury convicted Fenstermaker of the charged crime. On appeal before the Minnesota Court of Appeals, Fenstermaker argued that the trial court abused its discretion because there was no manifest necessity justifying the mistrial. The appeals court disagreed, but it noted that the double jeopardy issue presented a "close case." Fenstermaker, 2014 WL 4290318 at *6. Fenstermaker then sought and was denied review by the Minnesota Supreme Court.

         After he exhausted his state court appellate opportunities, Fenstermaker filed a petition for writ of habeas corpus with the district court, arguing that the Minnesota Court of Appeals erred in rejecting his double jeopardy claim. The magistrate judge recommended that the district court deny Fenstermaker's petition. The district court adopted the magistrate judge's report and recommendation, concluding that the Minnesota courts did not unreasonably apply clearly established federal law. Specifically, the district court stated:

[T]he magistrate judge was correct to find that it was not manifestly unreasonable to conclude that a continuance was an inviable option, given the short time remaining in the jury's term of service, and the complete uncertainty regarding when, if ever, the prosecutor would be available to return to the courtroom.

Fenstermaker v. Halvorson, No. 16-CV-363, 2017 WL 3608234, at *4 (D. Minn. Aug. 22, 2017). Finally, the district court granted Fenstermaker a certificate of appealability because "reasonable jurists could debate the ...


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