PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


STANLEY SANDERS,                       
              Petitioner-Appellant,
                 v.
MICHAEL F. EASLEY, Attorney
General of the State of North                     No. 00-2
Carolina; R. C. LEE, Warden,
Central Prison, Raleigh, North
Carolina,
              Respondents-Appellees.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Asheville.
              Richard L. Voorhees, District Judge.
                        (CA-98-184-1-V)

                      Argued: September 26, 2000

                      Decided: October 31, 2000

       Before WILKINS and LUTTIG, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Dismissed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Luttig and Senior Judge Hamilton joined.


                             COUNSEL

ARGUED: James Richard Glover, GLOVER & PETERSEN, P.A.,
Chapel Hill, North Carolina, for Appellant. Ellen Bradshaw Scouten,
2                         SANDERS v. EASLEY

Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON
BRIEF: Anthony Lynch, LYNCH & TAYLOR, Marion, North Caro-
lina, for Appellant. Michael F. Easley, Attorney General of North
Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees.


                              OPINION

WILKINS, Circuit Judge:

   Stanley Sanders seeks to appeal an order of the district court deny-
ing his petition for a writ of habeas corpus.1 See 28 U.S.C.A. § 2254
(West 1994 & Supp. 2000). Sanders wishes to avoid a fourth capital
sentencing proceeding, asserting that such a hearing is barred by the
Double Jeopardy Clause. Because Sanders has failed to make a sub-
stantial showing of the denial of a constitutional right, see 28
U.S.C.A. § 2253(c)(2) (West Supp. 2000), we deny a certificate of
appealability and dismiss the appeal.

                                   I.

   In 1982, Sanders was convicted of the rape and murder of Jacque-
line Lee and was sentenced to death. His convictions and sentence
were vacated on appeal, however, because of problems with the trial
transcript. See State v. Sanders (Sanders I), 

, 837
(N.C. 1984) (per curiam). Sanders was again convicted and sentenced
to death in 1985. The North Carolina Supreme Court affirmed his
convictions on appeal, but vacated the death sentence on the basis that
the penalty-phase jury instructions violated McCoy v. North Carolina,

 (1990). See State v. Sanders (Sanders II), 

, 429 (N.C. 1990).
    1
   Sanders named Michael F. Easley, Attorney General of North Caro-
lina, and R. C. Lee, Warden of Central Prison where Sanders is incarcer-
ated, as Respondents. For ease of reference, we refer to Respondents as
"the State" throughout this opinion.
                          SANDERS v. EASLEY                            3

   Sanders’ third capital sentencing hearing began on September 11,
1995 and ended in a mistrial on October 5. Before the jury retired to
consider its verdict, it was instructed that it would be required to con-
sider four issues: (1) whether the State had proven one or more aggra-
vating circumstances; (2) whether Sanders had established the
existence of any mitigating circumstances; (3) whether the aggravat-
ing circumstance or circumstances found by the jury outweighed any
mitigating circumstances found by any of the jurors; and (4) whether
the aggravating circumstance or circumstances were of sufficient
weight to justify imposition of the death penalty. The jury began
deliberating at 10:45 a.m. on October 4, and broke for lunch from
12:25 to 2:10. At 4:00, the jury submitted the following question to
the trial court:

    How do we as a jury, when one or more of us have ques-
    tions regarding facts of the case (feel we have not been
    given enough information) deal with finding the facts or
    coming to an undecisive [sic] conclusion.

J.A. 183. The trial court learned from the foreman that the problem
related to issue three, and accordingly reinstructed the jury on issues
three and four. The jury resumed deliberations at 4:20.

   At 5:05, the trial judge brought the jury to the courtroom to excuse
them for the day. In taking custody of the verdict sheet and the jurors’
notes, the court noted that there was a folded piece of paper on the
top of the materials. The foreman indicated that the paper contained
another question for the court but that the jury was not finished for-
mulating it. The next morning the trial court, having read the uncom-
pleted question, asked the foreman "how long . . . have you been
deliberating on the issue that you’re currently deliberating on?" J.A.
150. The foreman stated that the jury had been working on the current
issue since the previous afternoon and that it had taken three votes,
the last of which differed from the first two. The court then directed
the jury to resume deliberations, which it did at 9:49.

  At 10:20, the jury submitted the following note:

    We have a vote of 11-1
    Hung Jury on the final Issue
4                            SANDERS v. EASLEY

J.A. 184. In response to questioning from the court, the foreman indi-
cated that the jury had begun deliberating on issue four that morning.2
The trial court sent the jury back to the jury room with instructions
to continue to deliberate. At 10:55, the jury submitted the following
note to the court:

        We can not [sic] come to a unanimously [sic] decision on
        Issue Four.

        We had a [sic] error at one point and went ahead & signed
        it but we re-read Recommendation as to punishment.

        We need to know if life means life in prison.

        We got one juror who done investigation on her own and
        talked to a judge and Police officers.

J.A. 185. The foreman informed the court that the "one juror" was
juror #6, Renita Lytle, and that she had told the jury that she had
talked to a judge and police officers who told her that Sanders would
serve at least 20 years if sentenced to life imprisonment.

   Based on this information, the trial court stated that "I don’t think
I’ve got any choice at this stage but to declare a mistrial because of
juror misconduct, and I think I’ve got probable cause to do that." J.A.
160. Defense counsel urged the court not to declare a mistrial. The
State also indicated its reluctance to have a mistrial, and suggested
questioning Lytle in hopes of avoiding one. Lytle offered the follow-
ing explanation:

           JUROR LYTLE: . . . Your honor, I lied about telling the
        jury that I talked to anyone about the situation for being the
        only one in there and having all the people, the jurys [sic],
        hollering at me, fussing at me, hoping that things—bad
        things to me. When I went home yesterday, I cried all the
        way home cause I . . . get along with everybody and I hate
    2
   Evidently, the note that the jury did not submit to the trial court also
indicated that the jury was divided 11-1, but on the third issue.
                       SANDERS v. EASLEY                               5

for anybody to be mad at me. And when I got home yester-
day, I was trying to figure out a way . . . of getting them
people to let me have my own opinion, which they didn’t.
I mean they would not let me be satisfied with my opinion
about things. They would not listen to me. Everybody was
like against me and . . . I could not take the pressure of them
hollering at me so I went home. I did call my nephew but
I did not say anything about the case. I just asked him about
what kind of gun he carried . . . . I did not ask him about
the case and the only reason I told them is because the truth
is I did call a . . . police officer; thats the truth. But I did not
say anything about the case.

   And then I told a lie about the judge because . . . they was
making me think that I was dumb and that I didn’t have a
right to my opinion. . . . I mean yesterday they were like,
"You need to get out of here!" I mean, "You don’t need to
be in here! You need to go tell the judge that I don’t belong
in here and get one of them alternates to come in and take
your place." I mean it was really pressuring me into doing
things that I really didn’t believe in, and I was feeling hurt
and I was feeling sad because they didn’t like me for the
reason, for my suggestion, . . . and I couldn’t take the pres-
sure and so I figured if I just tell them that, . . . then they
will just back off and leave me alone . . . .

....

  THE COURT: . . . Well, let me ask you this, Mrs. Lytle,
what is your understanding about what life in prison means?

   JUROR LYTLE: I don’t know, my understanding of
life in prison is life in prison. I mean you go to jail and you
remain for life; thats my understanding. . . . [B]ut they’re
like no, it’s not. I mean, told me that if I decide that he get
life imprisonment, then he’ll get out in a couple of months.
And then . . . they told me plainly, "And I hope that you or
anybody in your family will be his next victim." And with
all that was said, I just could not take it. I mean it’s too hard
6                          SANDERS v. EASLEY

      and they hoping bad things to my family, I mean that’s not
      right.

J.A. 164-67.

   Following this colloquy, the trial court stated that it did not have
probable cause to cite Lytle for juror misconduct. The court instructed
the jury, in accordance with North Carolina law, that parole eligibility
was irrelevant to the sentencing determination and that the jury should
proceed as if life meant "[i]mprisonment in the state’s prison for life."
J.A. 174 (internal quotation marks omitted). The court also instructed
the jury to attempt to reach a verdict without individual jurors surren-
dering their conscientious convictions. The jury resumed deliberations
at 12:25.

    At 12:45, another note was submitted to the court:

      (1) Is a statement from Juror #6 [Lytle] that because we
      were not at the earlier trials for murder and did not know all
      the facts, that she could not vote for the death sentence and
      didnt know how the rest of us could, Is that reason accept-
      able to the court.

      (2) Juror 6 made several statements that basically said she
      did not believe in the death penalty; however, when pressed
      on the issue said she did believe in it.

         I’m sorry if I’m making trouble for the court, I simply felt
      I needed to ask these questions. If you don’t wish to answer,
      that is, of course, fine with me.

           Thank you,
           Juror #3

J.A. 186. After reviewing the note, defense counsel requested that the
court determine whether the jury was still deadlocked, and if so,
impose a life sentence. In making this request, counsel observed that
the jury had "degenerated into something that is much less than jury
deliberations." J.A. 177. The State moved for a mistrial, and the trial
                         SANDERS v. EASLEY                            7

court granted the motion. The court subsequently issued the following
written order:

       During jury deliberations in the above entitled matter, the
    jury, through the foreperson, handed out via the courtroom
    bailiff to the Court a number of written questions and state-
    ments, all of which the Court attempted to answer after con-
    ferring with the attorneys on the record with the defendant
    present. All of these questions and statements of the jury,
    conferences with counsel and responses by the Court to the
    jury appear of record. Likewise, the conferences with coun-
    sel regarding how to proceed after it was reported in writing
    to the Court by the jury foreperson that a juror, during an
    overnight recess of jury deliberations, said that she had
    talked with a judge and police officer or officers about cer-
    tain aspects of the matter appear of record, as does the
    Court’s rulings on various motions, it’s [sic] questioning
    individually the foreperson and juror number six, and their
    responses to the Court’s questions.

       Therefore, the Court makes no findings with regard to
    matters that appear in the official court file or transcript,
    which speak for themselves. Nor does the Court make any
    finding with regard to the truth or falsity of the substance of
    what was reported to the Court individually by the foreper-
    son or by juror number six regarding her conduct during the
    overnight recess in deliberations.

       However, after considering all matters, both written and
    oral, transmitted to the Court by the foreperson or by an
    individual juror, the Courts instructions to the jury regarding
    the law they were to apply and repeated instructions by the
    Court as to their conduct both while in or out of court (all
    of which appear of record), and after considering arguments
    of counsel, the Court makes the following Findings of Fact:

      1. From observation of juror number six during her being
    individually questioned by the Court, the statements she
    made as to the treatment she had received by some other
    members of the jury during its deliberations the previous
8                            SANDERS v. EASLEY

        afternoon and the character of the subsequent written com-
        munication that was delivered to the Court by an individual
        juror, the statements juror number six made concerning the
        treatment she received are credible and true.

           2. One or more of the jurors are not following the law as
        instructed by the Court, nor are they following the subse-
        quent instructions of the Court as to their duties and conduct
        of jury deliberations.

          3. The failure of one or more jurors to abide by the
        Court’s instructions began to occur before the jury had been
        deliberating for a reasonable length of time.

          Based upon all matters of record and the above findings
        of fact, the Court makes the following Conclusion of Law:

           1. That one or more jurors have engaged in juror miscon-
        duct, which misconduct has occurred prior to the expiration
        of a reasonable length of time within the meaning and intent
        of [N.C. Gen. Stat. § 15A-2000(b) (1999)].3

          2. That considering all of the circumstances, the only
        appropriate course is to discharge the jury and terminate this
        sentencing hearing.

          It is therefore ORDERED, that the motion by the State for
        a mistrial is hereby ALLOWED.

J.A. 187-88.

  The State scheduled another sentencing hearing—Sanders’ fourth
—in March 1996. Prior to the commencement of the hearing, Sanders
moved to cancel it on double jeopardy grounds. When this motion
was denied, he sought review of the declaration of mistrial and denial
    3
   N.C. Gen. Stat. § 15A-2000(b) provides in pertinent part that "[i]f the
jury cannot, within a reasonable time, unanimously agree to its sentence
recommendation, the judge shall impose a sentence of life imprison-
ment."
                          SANDERS v. EASLEY                            9

of the motion in the North Carolina Supreme Court. That court
affirmed, reasoning that the declaration of a mistrial was supported by
manifest necessity. See State v. Sanders (Sanders III), 

, 575-77 (N.C. 1998). Specifically, the court concluded that the
jury had ignored the trial judge’s instructions and discussed "outside
matters such as parole eligibility, a juror’s outside investigation, evi-
dence at the previous trial, and whether one juror believed in the
death penalty." Id. at 575. The court also determined that the trial
court properly concluded that the coercion of Lytle "exceeded the
allowable limits" and was itself sufficient justification for a mistrial.
Id.

   Sanders thereafter filed this habeas petition. The case was referred
to a magistrate judge, who recommended denying relief. After consid-
ering and rejecting Sanders’ objections, the district court adopted the
magistrate judge’s recommendation. Sanders now appeals.

                                   II.

                                   A.

   The Double Jeopardy Clause of the Fifth Amendment, made appli-
cable to the states through the Fourteenth Amendment, provides that
no person shall "be subject for the same offence to be twice put in
jeopardy of life or limb." U.S. Const. amend. V; see Benton v. Mary-
land, 

, 794 (1969). Among other things, the Double
Jeopardy Clause protects a criminal defendant from facing "repeated
prosecutions for the same offense," Oregon v. Kennedy, 

,
671 (1982); accordingly, the state is generally allowed only one
opportunity to compel a defendant to stand trial, see Arizona v. Wash-
ington, 

, 505 (1978). This protection encompasses a right
to have a particular tribunal decide guilt or innocence once jeopardy
has attached. See id. at 503. But, this right is not absolute. There are
circumstances under which retrial is permitted after a criminal pro-
ceeding has ended in mistrial. For example, if a defendant requests or
consents to a mistrial, the Double Jeopardy Clause will not bar retrial
unless the prosecutor has engaged in conduct intended to provoke the
mistrial request. See Kennedy, 456 U.S. at 675-76. If the defendant
opposes the declaration of a mistrial, however, retrial is prohibited
unless there was a manifest necessity for the mistrial or the failure to
10                         SANDERS v. EASLEY

declare a mistrial would have defeated the ends of justice. See Wade
v. Hunter, 

, 690 (1949). This proposition of law was first
recognized in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824), in which Justice Story wrote:

     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 used with the greatest
     caution, under urgent circumstances, and for very plain and
     obvious causes; and, in capital cases especially, Courts
     should be extremely careful how they interfere with any of
     the chances of life, in favour of the prisoner. But, after all,
     they have the right to order the discharge; and the security
     which the public have for the faithful, sound, and conscien-
     tious exercise of this discretion, rests, in this, as in other
     cases, upon the responsibility of the Judges, under their
     oaths of office.

Whether the declaration of a mistrial is manifestly necessary turns on
the facts before the trial court. See Illinois v. Somerville, 

, 464 (1973); see also Arizona v. Washington, 434 U.S. at 506
(explaining that the "manifest necessity" standard cannot "be applied
mechanically or without attention to the particular problem confront-
ing the trial judge"). While manifest necessity for a mistrial does not
require that a mistrial be "necessary" in the strictest sense of the word,
it does require a high degree of necessity. See Arizona v. Washington,
434 U.S. at 506. Perhaps the clearest example of a situation in which
manifest necessity exists for a mistrial is when a jury is unable to
reach a verdict. See id. at 509. At the other extreme are situations in
which the prosecution seeks a mistrial in order to have additional time
to marshal evidence to strengthen the case against the defendant. See
id. at 508. Between these two extremes exists a spectrum of trial
errors and other difficulties, some creating manifest necessity for a
mistrial and others falling short of justifying a mistrial.
                           SANDERS v. EASLEY                            11

   In all cases, the determination of a trial court that a mistrial is man-
ifestly necessary is entitled to great deference. See id. at 510. Never-
theless, "reviewing courts have an obligation to satisfy themselves
that, in the words of Mr. Justice Story, the trial judge exercised
‘sound discretion’ in declaring a mistrial." Id. at 514. If the grant of
a mistrial by the trial judge amounts to an irrational or irresponsible
act, he must be found to have abused his discretion in finding that
manifest necessity for the mistrial existed, for a trial judge "‘must
always temper the decision whether or not to abort the trial by consid-
ering the importance to the defendant of being able, once and for all,
to conclude his confrontation with society through the verdict of a tri-
bunal he might believe to be favorably disposed to his fate.’" Id.
(quoting United States v. Jorn, 

, 486 (1971) (Harlan, J.)
(plurality opinion)).

                                    B.

   Because Sanders filed his habeas petition after the April 24, 1996
enactment of the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the amend-
ments to 28 U.S.C.A. § 2254 effected by § 104 of the AEDPA govern
our resolution of this appeal. Accordingly, the question before us is
not simply whether manifest necessity or the ends of public justice
supported the declaration of a mistrial in Sanders’ case. Rather, we
must determine whether the decision of the North Carolina Supreme
Court in Sanders III "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1). We
may not grant habeas relief unless, at a minimum, this standard is sat-
isfied. As the Supreme Court recently explained in Williams v. Tay-
lor, 

, 1523 (2000), a state court decision is "contrary
to" clearly established federal law if the state court has "arrive[d] at
a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts." A
state court decision constitutes an unreasonable application of federal
law if it "identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case." Id.
12                         SANDERS v. EASLEY

   It certainly cannot be said that the decision of the North Carolina
Supreme Court in Sanders III was contrary to clearly established
Supreme Court precedent. The state court correctly identified "mani-
fest necessity" as the governing standard and articulated specific con-
siderations similar to those recognized by the Supreme Court. See
Sanders III, 496 S.E.2d at 573-74; see also id. at 574 (quoting state-
ment of Justice Story from United States v. Perez).

   We also conclude that the decision in Sanders III did not result
from an unreasonable application of clearly established Supreme
Court precedent. Again, we note that the determination we are
required to make under the AEDPA is a very limited one. It is not
whether there was manifest necessity for a mistrial, but rather whether
the North Carolina Supreme Court ruled unreasonably in concluding
that manifest necessity existed. See Williams, 120 S. Ct. at 1522
("Under § 2254(d)(1)’s ‘unreasonable application’ clause, . . . a fed-
eral habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incor-
rectly. Rather, that application must also be unreasonable.").

   By the time the trial court declared a mistrial, it had been presented
with numerous instances indicating that the jury deliberations had
devolved into something much less than a reasoned, good faith
attempt to reach a verdict. The first concrete indication that the delib-
erations were troubled was the foreman’s note regarding the outside
investigation purportedly conducted by Lytle concerning the irrele-
vant issue of parole eligibility.4 In attempting to resolve that issue, the
trial court learned that Lytle had been subjected to harassment by her
fellow jurors, to the extent she felt it necessary either to consult with
third parties regarding the case or to fabricate such a consultation in
hopes that the other jurors would find her views more palatable.
Although the trial court did not find it necessary to declare a mistrial
at that juncture, instead attempting to cure the problem through fur-
  4
    The prior two notes—the first indicating that one or more jurors felt
that they lacked sufficient information and the second indicating that the
jury was "hung" on issue four—provide no clear indication that the jury
was considering extraneous matters or was failing to deliberate in good
faith.
                            SANDERS v. EASLEY                             13

ther jury instructions, the note from Juror #3 disclosed that the prob-
lems had not ceased, but rather had simply taken a new form. At a
minimum, the note from Juror #3 revealed a continuing exasperation
with Lytle, strongly indicating the possibility that the harassment was
continuing. The note could also be read to indicate continued consid-
eration of extraneous matters, namely, what occurred at the previous
trial.5 While none of these incidents may have justified a mistrial if
presented in isolation, we cannot say that the North Carolina Supreme
Court acted unreasonably in concluding that, in light of all the inci-
dents, the jury deliberations had become such a debacle that the state
interest in a just verdict could only be protected by the declaration of
a mistrial.

   Sanders raises several arguments, none of which persuades us of
the unreasonableness of the state court decision. First, Sanders con-
tends that "strict scrutiny" of the mistrial order is required because the
declaration of a mistrial favored the State, in that the mistrial afforded
the State another opportunity to seek the death penalty against Sand-
ers. Brief of Petitioner-Appellant at 28. Of course, double jeopardy
principles will bar retrial after the prosecution has engaged in bad
faith actions intended to provoke a mistrial request by the defendant.
See United States v. Dinitz, 

, 611 (1976); see also Ken-
nedy, 456 U.S. at 675-76 (explaining that prosecutorial overreaching
"does not bar retrial absent intent on the part of the prosecutor to sub-
vert the protections afforded by the Double Jeopardy Clause"). Here,
however, even viewing the facts in the light most favorable to Sand-
ers, the most that can be said is that the State was pleased to have the
opportunity to retry Sanders. There is not even a scintilla of evidence
to suggest that the prosecution had any part in creating the circum-
stances that led the trial court to declare a mistrial.

    Sanders next maintains that the potential grounds for mistrial iden-
tified by the State on appeal—the discussion of parole eligibility, out-
side investigation, the previous trial, and whether Lytle believed in
the death penalty (dubbed by Sanders as "the four irrelevancies")—
did not support a mistrial. Essentially, Sanders maintains that the trial
court could not have found juror misconduct based upon the discus-
  5
   The trial court had explicitly instructed the jury that "[a]ll of the evi-
dence relevant to your recommendation has been presented." J.A. 98.
14                         SANDERS v. EASLEY

sion of the irrelevancies because, after each one was brought to light,
the court instructed the jury not to consider it, and the record does not
demonstrate that the jury continued to consider improper matters after
being instructed by the judge not to do so.6
   This argument demonstrates a failure to appreciate the significance
of the fact that the events that preceded the declaration of mistrial did
not occur in isolation, but were rather part of a pattern. As noted pre-
viously, Sanders may be correct that each incident, by itself, may not
have been enough to create manifest necessity for a mistrial. How-
ever, the trial court was not presented with only one incident, but
rather with a series of occurrences. It simply was not unreasonable for
the North Carolina Supreme Court to conclude that these instances,
taken together, created manifest necessity for a mistrial on the basis
that the jury not only had failed to engage in good faith, reasoned
deliberations regarding the issues before them prior to the giving of
curative instructions, but also that the jury was continuing to stray
from its task.
  Finally, Sanders claims that the trial court acted precipitously in
declaring a mistrial. This assertion is flatly contradicted by the record,
which demonstrates that the court was reluctant to declare a mistrial
and engaged in several efforts to get the jury back on track. Only
when it was clear that these efforts had failed did the court declare a
mistrial.
                                   III.
   For the reasons set forth above, we conclude that the decision of
the North Carolina Supreme Court in Sanders III neither was contrary
to, nor rested on an unreasonable application of, clearly established
federal law as determined by the Supreme Court. Accordingly, we
deny Sanders’ request for a certificate of appealability and dismiss the
appeal.
                                                            DISMISSED
  6
   Sanders makes this same argument with respect to the treatment of
Lytle, essentially asserting that because the jurors were never instructed
not to mistreat and harass each other, it was not misconduct for them to
do so.