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November 12, 1996

HAROLD LOVE, Petitioner,
WILLIS MORTON, et al., Respondents.

The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Petitioner Harold Love seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his state court retrial, following a mistrial, violated the Double Jeopardy Clause of the Fifth Amendment. Because petitioner's first trial was terminated without his consent and without manifest necessity, the Court will grant his petition for a writ of habeas corpus.


 A. Procedural History

 On December 5, 1995, after exhausting available state remedies, petitioner filed the instant petition for a writ of habeas corpus advancing a claim based on the Double Jeopardy Clause of the United States Constitution. See U.S. Const. amend V ("Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ."). Because his petition raises a serious constitutional issue, this Court on July 10, 1996, ordered an evidentiary hearing and appointed petitioner counsel pursuant to Townsend v. Sain, 372 U.S. 293, 313, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), and 18 U.S.C. § 3006A(g). *fn1" The Court held the evidentiary hearing on September 6, 1996, after which the parties submitted additional briefs. After examining the entire record and determining the credibility of testifying witnesses, the Court now makes the following findings of fact.

 B. Findings of Fact

 On June 14, 1993, petitioner's trial began in Atlantic County on charges of robbery and first degree armed robbery before the Honorable James Citta of the New Jersey Superior Court. Judge Citta normally sat in Toms River in Ocean County, but had been temporarily assigned to sit in Mays Landing. See Hearing Tr. at 8. He lived more than one and a half hours from the Mays Landing Court House. See Hearing Tr. at 16. Love was represented by John Hehre, a public defender since 1981. See Hearing Tr. at 54. Assistant Prosecutor Ellen E. Loughney represented the State of New Jersey.

 A jury was selected on June 14. On the next day counsel delivered opening statements, and the prosecution began its case-in-chief. The second witness called by the prosecution was petitioner's arresting officer, Sergeant Robert A. Schwartz ("Schwartz"). During his direct testimony Schwartz testified that he entered the house, went upstairs to the bathroom, "forced the door open" and saw petitioner "at the sink apparently attempting to rinse his hands" to remove blood which Schwartz observed on Love's hands. First Trial Tr. at 42-43. This testimony was significant since the victim herself had been described as bleeding "profusely." Id. at 53. Schwartz also stated that Love had resisted the attempt to handcuff him. See id. at 44.

 During cross examination defense counsel pointed to inconsistencies between his trial testimony and a report prepared by Schwartz following Love's arrest. Schwartz was forced to concede that Love himself opened the bathroom door. See id. at 52. After first insisting that only petitioner's hands were wet, Schwartz corrected himself and admitted that Love's "face and hands were dripping with water." Id. at 54. Finally, Schwartz conceded that Love was not charged with resisting arrest and that the report he prepared following the arrest made no reference to any resistance by Love. See id. at 55.

 At about 3:30 p.m., while in chambers to discuss an evidentiary issue which arose during the testimony of the fourth witness, Detective Lee Ragozzine ("Ragozzine"), Judge Citta received a tragic telephone call from his wife that his mother-in-law had just passed away. Her death was unexpected, and Mrs. Citta was "hysterical." Hearing Tr. at 19. Judge Citta was close to his mother-in-law and was upset not only at her untimely passing, but also at his inability to be immediately available to comfort his wife. See id.

 Judge Citta informed counsel what had happened and that he "was going to have to make arrangements to get home as quickly as possible." Hearing Tr. at 13. He then telephoned the Honorable Dennis Braithwaite, the presiding criminal judge, to discuss alternatives. *fn2" After quickly considering the feasibility and propriety of substituting judges or adjourning the trial, the two decided it best to declare a mistrial and retry petitioner with a new jury as soon as possible. See Hearing Tr. at 14. Judges Citta and Braithwaite did not then realize the availability of the Honorable Carmen Alvarez. See Hearing Tr. at 15. Nor did the two at any time consider the double jeopardy implications of their decision.

 Judge Braithwaite then instructed counsel to return the following morning ready to pick a new jury. Later that afternoon, he assigned Judge Alvarez to retry petitioner beginning the following morning. *fn4" Judges Braithwaite and Alvarez did not consider the possibility of reviewing the day's proceedings and resuming the original trial before the original jury. *fn5" Instead, the two arranged to impanel a new jury and begin petitioner's trial anew. It was not until defense counsel returned to his office that he first considered the double jeopardy issue.

 The following morning, before Judge Alvarez, defense counsel moved to dismiss on double jeopardy grounds. Judge Alvarez denied the motion and the second trial commenced. The prosecution did not call Schwartz as a witness and modified the testimony of Ragozzine to include the victim's description of the perpetrator. Compare First Trial Tr. at 87 with Second Trial Tr. at 44. The second trial concluded on June 21, 1993, when the jury found petitioner guilty on both robbery counts. The first count merged into the second and the court sentenced petitioner to thirty years imprisonment.

 Petitioner appealed to the Appellate Division alleging, inter alia, that his retrial violated the Double Jeopardy Clauses of the United States and New Jersey Constitutions. See U.S. Const. amend. V; N.J. Const. art. I, P 11. In a published opinion, the Appellate Division rejected this claim, finding that manifest necessity existed for the declaration of a mistrial. See State v. Love, 282 N.J. Super. 590, 598-99, 660 A.2d 1246, 1250-51 (App. Div. 1995). The New Jersey Supreme Court denied certification. See State v. Love, 142 N.J. 572, 667 A.2d 189 (1995).


 In habeas proceedings, state courts' findings of fact are entitled to a presumption of correctness. See 28 U.S.C. § 2254(d) (applicable old version) ("[A] state court determination . . . of a factual issue . . . shall be presumed to be correct."); see also 28 U.S.C. § 2254(e)(1) (amended version) ("[A] factual determination made by a State court shall be presumed to be correct."). On petitioner's double jeopardy issue, however, the state courts made few findings of historical fact. See Second Trial Tr. at 15-16 (determining that petitioner consented to the mistrial and there existed manifest necessity--both mixed questions of fact and law); Love, 282 N.J. Super. at 592-95, 660 A.2d at 1248-49 (treating as fact counsel's double jeopardy arguments before Judge Alvarez). To the extent the state's limited factual inquiry involved historical facts, its findings are fully consistent with the facts found in this opinion based on the evidentiary hearing held on September 6, 1996.

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