Appeal from the United States District Court for the District of Nevada*fn1 Robert Clive Jones, District Judge, Presiding D.C. No. 2:08-cv-00802-RCJ-RJJ.
The opinion of the court was delivered by: Reinhardt, Circuit Judge
Argued August 10, 2009 Submitted August 14, 2009 -- San Francisco, California.
Before: Procter Hug, Jr., Stephen Reinhardt and Barry G. Silverman, Circuit Judges.
Opinion by Judge Reinhardt; Dissent by Judge Silverman
At the time of Harrison's sentencing trial and all state court proceedings related to the denial of his motion to strike the death penalty, the Nevada Supreme Court had interpreted the relevant statutory provisions to require that "[t]o obtain a death sentence, the State must prove beyond a reasonable doubt that at least one aggravating circumstance exists and that the aggravating circumstance or circumstances outweigh any mitigating evidence." Gallego v. State, 23 P.3d 227, 239 (Nev. 2001) (en banc) (emphasis added); see also Johnson v. State, 59 P.3d 450, 460 (Nev. 2002) (per curiam) ("[The] finding regarding mitigating circumstances is necessary to authorize the death penalty in Nevada, and we conclude that it is in part a factual determination, not merely discretionary weighing. . . . [W]e conclude that Ring requires a jury to make this finding as well: 'If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.' " (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002) (emphasis added)); Witter v. State, 921 P.2d 886, 896 (Nev. 1996) (per curiam) ("[W]e read NRS 200.030(4) as stating that the death penalty is an available punishment only if the state can prove beyond a reasonable doubt at least one aggravating circumstance exists, and that the aggravating circumstance or circumstances outweigh the mitigating evidence offered by the defendant." (emphasis added)), abrogated on other grounds by Byford v. State, 994 P.2d 700 (Nev. 2000).
Accordingly, we were surprised to learn that the Nevada Supreme Court issued a decision on July 23, 2009 in which it stated that "[n]othing in the plain language of [the relevant statutory] provisions requires a jury to find, or the State to prove, beyond a reasonable doubt that no mitigating circumstances outweighed the aggravating circumstances in order to impose the death penalty" and that the court itself "has imposed no such requirement." McConnell v. State, 212 P.3d 307, 314-15 (Nev. 2009) (per curiam) (emphasis added). Although we heard oral argument in this appeal approximately two weeks after McConnell was decided, the District Attorney of Clark County failed to advise us of the case, and in fact did not do so until January 19, 2010, approximately five months later, after we had issued our decision. In fact, it did not do so until it filed a petition for rehearing en banc.
Even after the Nevada Supreme Court's McConnell decision, it remains beyond dispute that a defendant cannot be sentenced to death under Nevada law if a jury finds that the mitigating circumstances outweigh the aggravating circumstances. Such a finding establishes an acquittal of the death penalty for purposes of the Double Jeopardy Clause, regardless of what burden of proof applies. Accordingly, this case does not require us to resolve the question whether the "beyond a reasonable doubt" standard applies to that finding, and we now issue a superseding opinion to make clear that our opinion does not do so. The superseding opinion is, of course, the operative and controlling opinion for all purposes.
The prior opinion in this case is hereby withdrawn, and is replaced with the superseding opinion filed concurrently with this order. The pending petition for rehearing en banc is dismissed as moot. The panel will entertain any petition for rehearing or rehearing en banc filed in accordance with the applicable rules.
A jury may have acquitted James Harrison of the death penalty. We will never know, because the trial court denied his request to ask the jury two simple questions that could have conclusively established that fact, and instead dismissed the jurors. Now, the State of Nevada seeks once again to have him executed. Harrison asserts that a retrial on the death penalty would violate the Double Jeopardy Clause.
The State prosecuted Harrison for murder, and the jury returned a guilty verdict. The State then sought the death penalty, which required proof of two additional facts beyond guilt: that at least one aggravating circumstance existed, and that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances. Nev. Rev. Stat. § 175.554(3). The jury was permitted to impose a sentence of death only if it made both findings unanimously. Hollaway v. State, 6 P.3d 987, 996 (Nev. 2000) (en banc). If it made both findings, it also had the option to sentence the defendant to a non-capital sentence: life without parole, life with parole, or a fixed term with parole. Nev. Rev. Stat. § 200.030(4). If the jury determined that the there were no aggravating circumstances or that there were mitigating circumstances sufficient to outweigh any aggravating circumstances, it was free to choose only one form or another of the three non-capital sentences. Id.
The jury reported its inability to agree on a sentence, and two juror notes indicated that the jury was deadlocked between life with the possibility of parole and life without the possibility of parole. Harrison requested that the members of the jury be polled to determine (1) whether they had unanimously found that there were no aggravating circumstances and (2) whether they had unanimously found that the mitigating circumstances outweighed the aggravating circumstances. If the answer to either of the questions had been yes, the poll would have established that Harrison had been acquitted of the death penalty, and the Double Jeopardy Clause of the Fifth Amendment would have prohibited the State from seeking that penalty during Harrison's sentencing retrial. However, the prosecution objected to Harrison's request, and trial judge denied it. She then dismissed the jury and declared a mistrial.
We conclude that there was no manifest necessity to declare a mistrial without first polling the jury in order to determine whether Harrison had been acquitted of the death penalty. Accordingly, we hold that the trial court abused its discretion by denying Harrison's polling request. Because no other alternative would adequately protect Harrison's rights under the Double Jeopardy Clause, we further hold that the State may not seek the death penalty at a sentencing retrial, and no such penalty may be imposed by the court.*fn2
I. Factual and Procedural Background
In 2002, Harrison and Anthony Prentice were charged by the State of Nevada with conspiracy to commit murder, burglary, and murder with the use of a deadly weapon in connection with the death of Daniel Miller, Prentice's roommate. The State sought the death penalty against both defendants. The trials were severed, and Prentice was convicted of conspiracy to commit murder and murder with use of a deadly weapon and sentenced to life without parole. Subsequently, a different jury found Harrison guilty of the same charges.
Nevada law provides that Harrison's crime may be punished by death, life without parole, life with parole eligibility, or a definite term with parole eligibility. Nev. Rev. Stat. § 200.030(4). For the jury to impose death, two conditions must be met: first, the jury must unanimously find at least one aggravating circumstance; and second, the jury must unanimously find that the mitigating circumstance(s) do not outweigh the aggravating circumstance(s). Id.; see also Hollaway v. State, 6 P.3d 987, 996 (Nev. 2000) (en banc). If both conditions are met, the jury may choose to impose the death penalty, or may select a lesser sentence. If either condition is not met, the jury may not impose a death sentence. Nev. Rev. Stat. § 175.554(3).
During the penalty stage of Harrison's trial, the jury informed the court that, after deliberating at length, it could not reach a unanimous verdict. The court received "two notes from two different jurors indicating that the jury was deadlocked between life with [the possibility of parole] and life without [the possibility of parole]."*fn3 The judge expressed her inclination to bring the jury back and determine whether further deliberation would be fruitful, and to dismiss the jury in the event that it would not. One of Harrison's attorneys intervened:
I'd request that we inquire from the jurors how far along in the process that they were in this penalty phase, and by that I mean . . . they needed to make a determination if the aggravators were proved beyond a reasonable doubt. I would ask that this Court inquire of that.
And then the second issue was if the weighing process between the aggravators and mitigators if they had in fact done a weighing process, and I'd ask that this Court poll the 12 individual jurors and ask them individually if any of them made the determination that the mitigation outweighed the aggravations in this matter.
The prosecution opposed polling the jury on the ground that several Nevada statutes allegedly precluded the court from doing so,*fn4 and argued that "[t]he only way to make any determination as to which verdicts they reached or a partial verdict that may have been reached in this case is to look at the verdict form."
The court did not expressly deny defense counsel's requests to poll the jury, but impliedly agreed with the prosecution's argument. The court explained that if the special verdict forms reflected that the jury had found no aggravators, then "the State would be precluded from seeking the death penalty in a subsequent hearing." As to whether the jury had made a determination regarding the relative weight of the mitigators and aggravators, the court said: "The only way for us to know that is to see what form is actually filled out. I suspect, of course, neither form is going to be filled out because they're deadlocked on the punishment."
When the jury returned, the court inquired whether further deliberations would be productive, and the foreperson responded that they were "at an impasse." The court then collected all of the special verdict forms. Two were completed and signed (i.e., unanimously agreed-upon). One completed and signed form reflected that the jury found that one aggravating factor - that "[t]he murder involved mutilation of the victim" - had "been established beyond a reasonable doubt." The other completed and signed form reflected that the jury had found no fewer than twenty-four mitigating factors.
The other two forms were blank. The first was to be completed if the jury had arrived at its sentence; it was to be used only if the jury found that the aggravating circumstance(s) outweighed any mitigating circumstance(s), and it contained all four sentencing options. The second form was also to be completed if the jury had arrived at its sentence; it was to be used only if the jury found that the mitigating circumstance(s) outweighed the aggravating circumstance(s), and it contained three non-death sentencing options. Each of the two uncompleted forms contained a blank line next to each sentencing option, allowing the jury to indicate that it had chosen that option, a blank line allowing the jury to indicate the date, and a blank line for the foreperson's signature; but each was to be filled out only if the jury had decided on the sentence. The jury was not furnished with any form that was to be used to report a finding as to whether the mitigating circumstances outweighed the aggravating circumstances, or vice versa, in the absence of an agreement upon a sentence.
After collecting the forms, the court dismissed the jury and declared a mistrial without conducting the inquiry that Harri- son had requested.*fn5 Six months later, before the second penalty phase was scheduled to begin, Harrison made a motion to strike the death penalty. He stated that the members of the jury had "decided, twelve to zero, against the use of the death penalty because they had each independently determined that Harrison's mitigating circumstances outweighed the aggravating circumstances of his crime." He also argued that he had "insisted upon finding out whether or not the jury had reached a unanimous decision as to the death penalty, but the [trial] court denied his request to make further inquiry of the jury." He asserted that the Double Jeopardy Clause "entitled [him] to establish the record of the jury's verdict so that his rights could be protected."
Harrison also introduced three affidavits from former members of the jury, taken after they had been dismissed. The three affidavits state that, during the penalty phase deliberations, the jury had voted 12-0 that death was "off the table." The three jurors stated that "if [they] had been polled by the Court before being excused from service, [they] would have answered that [they] had determined that the mitigating circumstances outweighed the aggravating circumstance." The jury, they explained, was at an impasse between life with the possibility of parole and life without, and the last vote taken was 9-3 in favor of life without.
The State responded by arguing that the jury found Harrison guilty of murder plus an aggravating circumstance beyond a reasonable doubt, and simply had not decided which of the available sentences to impose. The State submitted another affidavit from a former member of the jury, which stated that, for her, "[t]he death penalty was never 'off the table' as a potential punishment option."
The state court denied Harrison's motion to strike the death penalty. Harrison petitioned the Nevada high court for a writ of mandamus, which was denied without explanation.*fn6 He next petitioned the United States District Court in Nevada for a writ of habeas corpus under 28 U.S.C. § 2241. He argued that the jury had acquitted him of the greater, death-penalty-eligible, offense, and that retrial on the death penalty would constitute double jeopardy. He further argued that he "had the constitutional right to have the jury polled in order to determine whether the jurors had reached a unanimous decision regarding the death penalty so that his rights against double jeopardy could be preserved."
The district court denied Harrison's petition, finding that nothing before it constituted an acquittal of the death penalty, and that double jeopardy was not implicated. The district court did not address whether the trial court abused its discretion by denying Harrison's polling request. Harrison appeals.
II. Jurisdiction and Standard of Review
 The federal courts have jurisdiction to grant a petition for habeas corpus when the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). "[A] habeas petition raising a double jeopardy challenge to a petitioner's pending retrial in state court is properly treated as a petition filed pursuant to 28 U.S.C. § 2241." Wilson v. Belleque, 554 F.3d 816, 821 (9th Cir. 2009) (citing Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004)).
The State acknowledges that § 2241 creates jurisdiction over pretrial double jeopardy claims, but notes that Harrison's claim pertains "not to a charge for which he is being detained pre-trial, but only as to one of several potential sentencing options at a re-sentencing hearing." Because "Harrison makes no challenge to the jury's verdict of guilty of first degree murder for which he is being detained," the State argues, we lack jurisdiction to hear his claim.
Our decision in Wilson v. Belleque, 554 F.3d 816 (9th Cir. 2009), and the Supreme Court decisions discussed in that opinion, compel us to reject the State's argument. In Wilson, the petitioner challenged his pending retrial in state court on double jeopardy grounds. Id. at 821. At the time, Wilson was incarcerated as a result of two prior convictions, neither of which he challenged in his habeas petition. Id. We were therefore required to determine "whether the current 'in custody' jurisprudence should be construed to include circumstances where the sovereign seeking to prosecute a petitioner is currently detaining the petitioner based on convictions or charges not being challenged." Id. at 822. We answered that question in the affirmative, noting that the Supreme Court "has construed the phrase 'in custody' very broadly" in the habeas context. Id. We found it particularly relevant that the Court had recognized federal jurisdiction over habeas claims based on future as well as present confinement. Id. (citing Braden v. 30th Judicial ...