Flint v. Carr

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his Wisconsin armed robbery conviction on Double Jeopardy grounds, under circumstances where: (1) defendant’s trial counsel at first trial made improper reference in opening statement to hearsay statement that suggested defendant’s cooperation with police; (2) trial court granted prosecutor’s motion for mistrial based on said statement; (3) defendant was subsequently convicted of armed robbery charge at second trial; and (4) second trial judge sua sponte raised Double Jeopardy question and confirmed appropriate nature of mistrial order. Wisconsin state court decision that defendant’s trial counsel was not ineffective for failing to make Double Jeopardy motion because said motion would have been without merit was entitled to deference in instant habeas setting. Moreover, said ruling was not unreasonable application of federal law, even if Ct. of Appeals might not have granted prosecutor’s motion for mistrial, where: (1) two state court judges determined that mistrial was necessary; and (2) there was no issue with regard to impropriety of trial counsel’s reference to hearsay statement, and defendant otherwise failed to show that either state court judge acted irrationally in either granting mistrial motion or confirming it.