ORDER AND JUDGMENT DENYING PETITION
STEPHEN V. WILSON, District Judge.
Petitioner filed a habeas petition ("Petition") in this Court under 28 U.S.C. § 2241 on March 9, 2011. The prosecution intended to pursue criminal charges against Petitioner on remand from the state appellate courts, and Petitioner seeks a writ of habeas corpus to prevent retrial of the case. The sole ground in the petition is that "retrial following a judgment of acquittal after the swearing of the jury violate[s] the Fifth Amendment's Double Jeopardy bar." (Petition at 5).
II. FACTS AND PROCEDURAL BACKGROUND
A. State Trial Court Proceedings
Petitioner was charged in state superior court with misdemeanor battery offenses related to a domestic violence incident involving Petitioner's girlfriend and her mother. (Lodgment #6 at 1). When the case was called for trial, the complaining victims did not appear in court. (Id. # 3 at 2). The prosecution asked for a continuance of the trial to locate those individuals. (Id. # 3 at 1-3; # 5 at 1-6, 17). The prosecution believed that it was entitled to that continuance under a grace period contained in California's speedy trial statute. (Id.). The prosecution informed the trial court that it had no witnesses to present at trial. (Id. #5 at 17).
The defense opposed the requested continuance or any pretrial dismissal of the charges. (Id. #3 at 3; #5 at 17). The court denied the prosecution's continuance request. (Id.). Instead, the judge selected a jury, swore the panel in, invited opening statements from the parties, and instructed the prosecution to put on its evidence. (Id. #5 at 7-18). Although physically present in the courtroom, the prosecutor did not participate in any of these proceedings. (Id.). The prosecutor gave no opening statement and called no witnesses to testify. (Id. # 5 at 15-17). The defense moved for a judgment of acquittal based on insufficient evidence to sustain a conviction. (Id. # 5 at 17-18). The trial judge granted the motion and entered a judgment of acquittal in favor of Petitioner, and then dismissed the case. (Id.)
B. State Appellate Proceedings
The prosecution appealed the adverse decision to the Appellate Division of the Superior Court. (Id. #6 at 1). A three-judge panel determined that jeopardy attached to Petitioner's case when the jury was sworn. (Id. #6 at 7). As such, his acquittal precluded the prosecution from seeking appellate review of the decision as a matter of state law. (Id.).
The California Court of Appeal reversed, determining that the trial court erroneously violated the prosecution's right to continue the trial. (Id. # 13 at 16-28). The appellate court found that it was "well-established that a trial court cannot dismiss a case before the expiration" of certain time limits in the state speedy trial statute. (Id. at 17). Under state supreme court precedent, it should have been "clear [that] the People are not required to show good cause in order to justify a continuance within the statutory period." (Id. at 16-17).
The appellate court therefore vacated the judgment of acquittal and dismissal of the case. The court found that Petitioner's proceedings were "only a sham trial" because Petitioner faced no real risk of conviction. (Id. at 8). The appellate court expressly concluded that federal double jeopardy principles neither barred the prosecution's original appeal nor a remand for a potential trial. (Id. at 10-15, 30). The California Supreme Court denied a subsequent petition for review of the decision and ordered the appellate decision to be depublished. (Id. # 15).
A. Standard of Review
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). Such a petition "is not reviewed under the deferential standards imposed by AEDPA." Id. at 828; Harrison v. Gillespie , 640 F.3d 888, 897 (9th Cir. 2011) (en banc). Rather, a federal court must grant habeas relief if it concludes "on ...