Rеspondent-appellant, State of Ohio, appeals the District Court’s order granting habeas corpus relief to petitioner-appellee, Donald Ray Harpster, under 28 U.S.C. § 2254. The District Court found that the state court in petitioner’s criminal trial declared a mistrial over defense objection without manifest necessity, thereby barring retrial of petitioner on double jeopardy grounds. For the following reasons, we AFFIRM.
I. Facts
A. Background
In the summer of 1995, petitioner lived with his girlfriend and her three year old daughter. On August 31, 1995, the girlfriend’s daughter told her mother that petitioner had touched her private parts. The girlfriend and her daughter moved out of petitioner’s house and went to the Children’s Hospital Care Center, where the daughter repeated her allegations to a pediatric nurse-practitioner. On September 13, 1995, Akron Police Detective Edward Mathews asked petitioner to accompany him to the police station to make a statement regarding the alleged sexual abuse. After an interview lasting from thirty to forty-five minutes, petitioner denied sexually abusing his girlfriend’s daughter and returned home. The investigation continued. On October 2 and again on October 10, 1995, Akron Police *324 detectives gave petitioner polygraph examinations. The results of these examinations indicated deceptiveness, but petitioner still denied the allegations and returned home after each one. Detective Mathews questioned petitioner a fourth time on the morning of October 25, 1995. • During this interrogation, Detective Mathews had petitioner read Ohio Revised Criminal Code § 2907.12, which stated that a person convicted of felonious sexual penetration “shall be sentenced to life.” During the same interrogation, Mathews suggеsted to petitioner, but did not promise or guarantee, that there was a possibility that he could receive remedial counseling instead of a life sentence if he confessed. Petitioner then confessed, and was ai’rested and charged with felonious sexual penetration.
B. State Court Proceedings
The state criminal trial began on April 15, 1996. During a pre-trial hearing, petitioner moved to suppress his confession as involuntary. Respondent moved to exclude the details of the penalty that attaches to felonious sexual penetration, namely, a mandatory life sentence. The trial court allowed petitioner’s confession into evidence. It also issued the following ambiguously worded order:
.... My ruling is that the evidence does not come in. You may have the testimony that he was shown the penalty from the statute and specify what the penalty is short of stating the penalty.
You may have him testify that he was presented with the information so that you may argue whatever you wish to argue frbm the fact that the Defendant recognized that a certain penalty could be imposed in the particular case.
Joint Appendix at 160. Although thе specific boundaries of the order were not clear, both parties and the court agreed that petitioner would not be allowed to introduce evidence that he faced a life sentence.
During opening statements, defense counsel described petitioner’s fear of the penalties for felonious sexual penetration. He stated that petitioner confessed only “after hearing and knowing the terrible penalties involved.” Joint Appendix at 164.' Defense counsel then continued with the statement that petitioner had
realizеd that at that point if he didn’t admit to something he didn’t do, he could be punished and imprisoned and all of the things started going through his head, the fact of what happens in prison, that a little guy is likely — is going to get raped and beaten and he was scared.
Id. at 165. At this point, respondent objected to defense counsel’s statements. The court summarily overruled the objection. Defense counsel continued to describe petitioner’s fear of punishment, stating that he was concerned “that he wasn’t going to see his family again, most importantly ... that he wasn’t going to see his son Nathan again.” Id.
Then the state began its case. When defense counsel cross-examined the prosecution’s fourth witness, Detective Mathews, the following exchange took place:
Q: And you wanted him to know what the penalty was because you knew how bad the penalty was?
A: Penalty is stiff.
Q: You wanted to scare him or let him know the penalty, that’s why you told him to read the penalty?
A: Let him know the penalty section of it, that’s correct.
Q: Why didn’t you tell him — why didn’t you just tell him, “It’s a tough penalty, Don”?
A: It’s more — it means more to them if they read it out loud.
Q: And it said “shall receive the penalty,” ' didn’t it?
A: Yes, it did.
Q: And you knew that that meant no probation, it meant “shall receive the penalty”?
Joint Appendix at 140-41. The proseсution then moved for a mistrial. Defense counsel objected. The court took the motion under consideration for fifteen minutes, returned to hear arguments from both parties, and then, granted a mistrial over defense objections.
*325 As it declared a mistrial, the court explained to defense counsel that its original command that petitioner “may have the testimony that he was shown the penalty from the statute and specify what the penalty is short of stating the penalty,” actually meant
that no penalty was to be discussed directly or indirectly before the jury; thаt you were to be permitted to set the facts and circumstances of the confession so the jury would weigh the credibility to be given to that evidence, nothing was to be said to the mandatory sentencing, the type of sentence, anything on the subject.
Joint Appendix at 194. Finding that petitioner violated its order and irreparably prejudiced the jury, the court declared a mistrial.
A second trial was scheduled for July 29, 1996. On July 19, petitioner moved to dismiss the charge based on a violation of the Double Jeopardy Clause. After hearing arguments from the parties on July 26, the cоurt denied petitioner’s motion and expressed additional reasons why it had ordered the mistrial in April. The court then explained to petitioner that the problem at trial actually had been “the cumulative effect of a number of statements made throughout your opening argument leading up to the final question asked of Detective Mathews, which was clearly in violation of the court’s instruction.” Joint Appendix at 269. The court also stated that it had crafted the original order to allow some description of the conditions surrounding the confession. It concluded that the final question caused incurable prejudice because learning that probation would not be an option would force the jury to conclude that petitioner’s fears of jail would necessarily come true upon conviction. The court also stated that it had been “very much mindful of the possibilities of a double jeopardy having attached here.” Id. at 271. The judge finished her justification of the mistrial by stating, “I was particularly motivated by your inflammatory statements regarding rape and assault in prison, and that is the reason that I felt a curative instructiоn would be of no consequence ... so this was a carefully considered decision.” Id. at 272. Because Ohio does not allow an appeal from an order denying a motion to dismiss, petitioner sought a stay of proceedings and habeas corpus relief from the United States District Court for the Northern District of Ohio.
C. Federal Habeas Proceedings
The District Court initially stayed the state court proceedings and then granted petitioner’s request for a writ of habeas corpus. The District Court based its ruling on three grounds. First it found that the trial court’s enforcement of the order excluding evidence of thе life sentence violated petitioner’s rights under .’the -Due Process Clause of the United States Constitution. . Second, it found that petitioner’s counsel had not violated the trial court’s pre-trial order. Third, the court found that no manifest necessity justified a mistrial and an instruction to the jury would have' cured any prejudice. Respondent appeals from the District Court’s provision of habeas corpus relief.
II. Discussion
A. Propriety of Review
Respondent .argues that the District Court should not have stayed the state court proceedings against petitioner to allow the litigation of his double jeopardy claim before his second trial., Because petitioner is entitled to have his double jeopardy claim litigated before being retried, we reject respondent’s arguments. The Fifth Amendment’s Double Jeopardy Clause protects indi- . viduals “not against being twice punished, but against being twice put into jeopardy.”
Ball v. United States,
B. Standard of Review
This court reviews the District Court’s grant of habeas corpus relief
de novo. See, e.g., West v. Seabold,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim'—
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the еvidence presented in the State court proceeding.
Id.
Because petitioner filed his application for a writ of habeas corpus on July 26, 1996, after the effective date of AEDPA, the revised § 2254(d) governs our inquiry into whether habeas corpus relief was appropriate in this case.
See Lindh v. Murphy,
— U.S. -,-,
The Sixth Circuit has not yet explained how courts should implement these new standards of review. The circuits that have construed the rеvised § 2254(d) have developed two slightly different approaches to review. Under the approach adopted by the Fifth and Seventh Circuits, a federal court first decides whether the petitioner challenges a question of law, a question of fact, or a mixed question of law and fact.
See Drinkard v. Johnson,
*327
In contrast, the First Circuit adopted an approach that avoids the classification of the issue into questions of law, questions of fact, or mixed questions of law and fact. Because an earlier draft of the AEDPA adopted this taxonomic approach, but the final version did not, the First Circuit decided that “it would be unseemly for a court to graft the discarded taxonomy onto the version of the bill that Congress subsequently enacted.”
Martin
v.
Bissonette,
No. 96-1856,
The difference between the two approaches has no practical significance in this case, which presents the question of whether there was manifest necessity for the state trial judge to declare a mistrial. The question of manifest necessity is heavily fact intensive — a mixed question of law and fact— and the Supreme Court has specifically. avoided prescribing rigid rules that compel outcomes.
See, e.g., United States v. Jorn,
C. Double Jeopardy and the Manifest Necessity Doctrine
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, commands that no person shall “be subjected for the same offense to be twice put in jeopardy of life or limb,” U.S. Const, amend. V, and applies to state prosecutions through the Fourteenth Amendment.
Benton v. Maryland,
Nevertheless, the Double Jeopardy Clause аllows retrial. after the declaration of a mistrial when the defendant’s “valued right” to a verdict from an empaneled jury is “subordinate[ ] to the public’s interest in fair trials designed to end in just judgments.”
Wade,
Because it is clear that petitioner objected to the declaration of mistrial, the central question in this case is whether manifest necessity existed for the mistrial. The unmistakable starting point for this analysis is
United States v. Perez,
We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be usеd with the greatest caution, under urgent circumstances, and for very plain and obvious causes....
Id. at 580. In subsequent opinions the Court further explained and developed the contours of the “manifest necessity” doctrine.
Perez
prescribed a case-by-case approach for this analysis. In the years since, the Court has “explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial.”
Jorn,
The manifest necessity doctrine does not require us to find that the trial court had no alternative but to declarе a mistrial. The Court has established that “the key word ‘necessity’ cannot be interpreted literally; instead ... we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.”
Washington,
In
Washington,
the trial court declared a mistrial in the second trial of the defendant after defense counsel made improper comments during opening argument and aU tempted to introduce evidence of prosecutorial misconduct in the' earlier trial. The prosecution moved for a mistrial on the grounds of potential juror bias. The Court realized that the trial judge’s decision that the jury was biased was entitled to great deference, but also recognized that it still had a duty to inquire into whether the judge exercised sound discretion. It explained that “[t]he trial judge ... ‘must always temper the decision whether or not to abort the trial ■by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed
to his
fate.’ ”
Id.
at 514,
In summary, a long history of Supreme Court precedent has bolstered and reaffirmed the doctrine established in
Perez.
Mistrials should not be declared unless “there is a. manifest necessity for the act, or the ends of public justice would otherwise be defeated.”
Perez,
D. Analysis
We start our analysis of this case with the trial judge’s order excluding evidence that petitioner faced a life sentence. The trial court based its order on what it considered an Ohio rule that .juries should never consider potential sentences in determining guilt or innocence. In this case, however, petitioner’s defense was that he confessed to the crime after reading the statutory penalty of mandatory life imprisonment when Detective Mathews suggested that therapy or psychiatric counseling might be available if he confessed. Petitioner sought to challenge the credibility of his own confession by establishing that he confessed not because he was guilty but to avoid a long sentence of imprisonment, here a life sentence. Thus, petitioner’s defense required him to establish that at the time of his confession he knew that a conviction would carry such a sentence.
In
Crane v. Kentucky,
In his opening statement, defense counsel described petitioner’s fears of potential rape and abuse if he were to be imprisoned. The prosecution objected, but the- court overruled it, allowing petitioner to continue with his theory that fear of punishment motivated his confession. The controversy about the limits of the judge’s order reemerged during cross examinatiоn of Detective Mathews, when petitioner’s counsel elicited that probation was not available for the offense with which petitioner had been charged. At this point, respondent objected and moved for a mistrial, which the court granted.
Respondent, relying upon
State v. Bayse,
Respondent also argues that the trial court had manifest necessity to declare a mistrial because petitioner exposed the jury to the irrelevant and inadmissible information that probation was not available for the charge. It asserts two reasons why Detective Mathews’ statement that he knew that probation would not be available if petitioner were convicted was irrelevant. First, the statute that petitioner read .does not mention probation; and secоnd, the real issue was what petitioner thought the statute meant, not what Detective Mathews knew it meant. Respondent argues that the trial court correctly decided that an instruction could not remedy the bias petitioner had instilled in the jury, thereby necessitating a mistrial. According to the trial court, the jury was prejudiced by the cumulative effect of petitioner’s repeated emphasis, from opening statements onward, of the punishment that would accompany conviction. The trial judge decided that the potential for prejudice became irrеparable when the jury learned that probation would not be available during Detective Mathews’ cross-examination testimony. The trial judge believed that at this point petitioner’s fears of what might happen in prison would become certainties in the minds of the jurors.
We find that, even if Detective Mathews’ testimony was irrelevant, the amount of prejudice that could have existed, if any existed at all, was minuscule. During the cross examination of Detective Mathews, the jury learned that probation would not be available, but it never learned the length of the sentence that would be imposed. Without knowing the length of the sentence that petitioner faced, the fact that probation would not be available is unlikely to prejudice the jury or affect its ability to reach an impartial verdict. When the penalty is “stiff,” no juror would expect a defendant to receive probation. Although the decision of a trial court to declare a mistrial based on potential juror bias is entitled to special respect, it would be an unreasonable application of the law, as established by Supreme Court prеcedent, to conclude that manifest necessity existed for a mistrial in this ease. We agree with the District Court that a simple corrective instruction would have sufficiently protected against juror bias. Because this ease lacks the urgent circumstances or high degree of necessity required to justify a mistrial, double jeopardy bars the retrial of petitioner.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the District Court.
Notes
. The District Court, in granting petitioner's writ of habeas corpus, held that the judge violated petitioner’s constitutional right to due process when it enforced its pre-trial order. We do not reach this issue because we find that regardless of the order's constitutionality there was no manifest necessity for a mistrial.