United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED February 2, 2024 No. 23-30086 Lyle W. Cayce ____________ Clerk

Lerone Lewis,

Petitioner—Appellant,

versus

Edward Bickham, Warden, Dixon Correctional Institute,

Respondent—Appellee. ______________________________

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:20-CV-484 ______________________________

Before King, Willett, and Douglas, Circuit Judges. Per Curiam: Lerone Lewis claims that his conviction for aggravated battery is barred by the Double Jeopardy Clause of the Fifth Amendment. Lewis underwent three trials for the same offense. His first trial resulted in a hung jury, and the trial court declared a mistrial. After the trial court empaneled and swore in a jury for a second trial, it declared a mistrial based on two jurors’ concerns about their personal calendars. The next day, with new jurors, a third trial resulted in a conviction. Case: 23-30086 Document: 00517054649 Page: 2 Date Filed: 02/02/2024

No. 23-30086

Pursuant to 28 U.S.C. § 2254, Lewis filed a habeas petition. The district court considered his petition on the merits and denied habeas relief. After reviewing the record, we conclude that the district court erred in determining that the trial court had a manifest necessity for declaring a second mistrial based on juror availability. Therefore, we REVERSE and REMAND for issuance of the writ. I. Background A. Facts On April 4, 2018, Lewis went to trial for an aggravated battery charge in Louisiana. The jury failed to reach a verdict and the trial court declared a mistrial. On October 17, 2018, a second trial began. As the parties proceeded with voir dire, the prosecutors used peremptory strikes for two jurors who indicated that they could not attend a second day of trial. As a result, and in accordance with Louisiana state procedures, the trial judge swore in six jurors and one alternate juror. See La. Code Crim. Proc. art. 782(A); La. R.S. 14:34. Next, the trial judge announced that while he expected trial to conclude that day, it “may go into tomorrow.” A juror then informed the trial judge that it was the last day of service for some of the jurors. The trial judge responded that he would “try to wrap up this trial today.” That proved to be challenging after some time had passed while the parties disputed over an unavailable witness. At least two jurors had scheduling difficulties. Before opening arguments, a juror sent word that she was having scheduling conflicts. She explained that she was a realtor and had “several appointments” with a client who was getting “angry.” The following discussion occurred:

2 Case: 23-30086 Document: 00517054649 Page: 3 Date Filed: 02/02/2024

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THE COURT: Can you reschedule? JUROR ONE: I haven’t been able to yet. THE COURT: Why not? JUROR ONE: Because I have to find someone, another r