HENLEY, Circuit Judge.
This is a habeas corpus proceeding brought by an inmate of the Cummins Unit of the Arkansas Department of Correction. Lyndale Walker, hereinafter called petitioner, complains that in connection with his 1977 felony convictions in the Circuit Court of Nevada County, Arkansas he was subjected to double jeopardy in violation of the fifth amendment to the Constitution of the United States.
Petitioner commenced this action under the provisions of 28 U.S.C. § 2254 in the United States District Court for the Western District of Arkansas.1 The district court held a full evidentiary hearing and filed a memorandum opinion denying relief. This appeal followed.
In early 1976 petitioner and another individual identified as Jackie Cooper were arrested by Nevada County authorities and charged with the burglary of and felony theft of property from a business establishment in the small town or community of Bluff City in Nevada County.
In addition, petitioner, individually, was charged under the pertinent Arkansas statute with being an habitual criminal; if convicted upon the latter charge as well as on the substantive charges petitioner would be subject to substantially enhanced punishment.
Petitioner was unable to furnish bail and was held pending trial in the county jail of Nevada County in Prescott, Arkansas. He remained there until he was tried in October, 1976. In the meantime, Jackie Cooper had given a statement to investigating officers that implicated petitioner in the burglary and theft.
When the case came on for trial originally, petitioner was represented by appointed counsel, Glen Vasser of Prescott, and Cooper was represented by another attorney, Charles L. Honey of Prescott. The trial was to a jury, with Circuit Judge John Goodson of Texarkana, Arkansas, presiding.
The trial having begun, Cooper was called as a witness by the State. In his testimony Cooper repudiated his statement implicating petitioner in the crime.
[685]*685Immediately after the repudiation and before the ease could go further, Judge Goodson was called to the telephone. He left the bench with Cooper still in the witness box, with the jurors present, and with petitioner, the prosecuting attorney, and both defense lawyers also present.
Before Judge Goodson returned to the courtroom, Mr. Honey approached his client, Jackie Cooper, and told him in a “low voice” to cease lying. This remark was overheard by counsel, and it is inconceivable that it was not overheard by at least one or more of the jurors since, according to the evidence, there was little more than an arm’s length distance between the witness box and the jury box.
Mr. Vasser feared that the remark had in fact been overheard by the jury, and that it was highly prejudicial to his client. Accordingly, when the trial judge returned to the bench Mr. Vasser indicated that he desired to move for a mistrial.
The circuit judge then excused the jury for lunch, and he and counsel for both sides and the petitioner repaired to chambers at which time Mr. Vasser formally moved for a mistrial. The prosecuting attorney indicated that he had no objection to the granting of the motion, and it was formally granted.
At this point the judge and the lawyers went to lunch and petitioner was carried back to jail for his noon meal.
During the noon hour petitioner decided that he did not want the case mistried because if a mistrial were declared he would have to remain confined in the local jail for a period of time about equal to that during which he had already been confined.2
Before court reconvened after lunch petitioner and his lawyer had a brief conference in the course of which petitioner stated that he did not want the case mistried. Counsel told petitioner that he thought that the case should be mistried. Petitioner, however, adhered to his position and requested counsel to advise Judge Goodson of his attitude. Counsel agreed to do so, and the question of whether he did or not is a crucial one in this case.
After the noon hour Judge Goodson reconvened court, told the jury that a mistrial had been declared and excused the jury from further consideration of the case. He • then heard Mr. Vasser on behalf of his client formally object to the mistrial and also permitted petitioner to make a statement on his own behalf. As of that time it was too late for the circuit judge to have done anything about the mistrial order if he had been inclined to do so.
By that time affairs had reached the stage at which it was clear that a serious difference had arisen between petitioner and Mr. Vasser. The latter was relieved of his duties, and in due course petitioner’s present counsel, Mr. James E. Davis of Tex-arkana, was appointed to represent him.
After the mistrial had been declared in the fall of 1976 petitioner was returned to the county jail where he remained until the second trial of the case in the spring of 1977.
In the interim between the two trials-petitioner moved pro se and by new counsel to dismiss the information against petitioner on the grounds that he had been denied his sixth amendment right to a speedy trial, and that a second trial would subject petitioner to double jeopardy prohibited by the fifth amendment as carried forward into the fourteenth amendment.
A second jury trial was presided over by Judge Hugh Lookadoo of Arkadelphia. The petitioner was found guilty and was sentenced to imprisonment for one term of ten years and another term of five years. Judge Lookadoo imposed sentence but directed that petitioner be given credit for the time that he had spent in jail.
Petitioner appealed to the Supreme Court of Arkansas assigning a number of errors including his claims that he had been denied a speedy trial and had been subjected to [686]*686double jeopardy. Those contentions, and others, were rejected, and the conviction and sentence of petitioner were affirmed. . Walker v. State, 556 S.W.2d 655 (Ark.1977). As to petitioner’s contentions about speedy trial and double jeopardy, the Arkansas court said (556 S.W.2d at 656):
First, there is no merit in the argument that Walker was subjected to double jeopardy and denied a speedy trial. At the first trial of the case an incident occurred during a recess that led Walker’s attorney to ask for a mistrial. The State did not resist the motion. After the mistrial had been granted and the jury had been discharged, Walker himself asked that a mistrial not be declared. Of course, it was then too late for that request to be granted, as the jury had been discharged; so the court denied Walker’s request.
The court’s action was plainly proper, for in a matter of this kind the defendant must be bound by his attorney’s judgment with regard to the motion for a mistrial. That the State acquiesced in the motion confirms the correctness of defense counsel’s position. Hence there was neither double jeopardy nor a denial of a speedy trial, for the time ran anew after the declaration of a mistrial. Rule 28.2(c), Rules of Criminal Procedure (1976). It is conceded that the case was retried within the time allowed by Rule 28.1(a).
Having exhausted state remedies, petitioner, still represented by Mr.
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HENLEY, Circuit Judge.
This is a habeas corpus proceeding brought by an inmate of the Cummins Unit of the Arkansas Department of Correction. Lyndale Walker, hereinafter called petitioner, complains that in connection with his 1977 felony convictions in the Circuit Court of Nevada County, Arkansas he was subjected to double jeopardy in violation of the fifth amendment to the Constitution of the United States.
Petitioner commenced this action under the provisions of 28 U.S.C. § 2254 in the United States District Court for the Western District of Arkansas.1 The district court held a full evidentiary hearing and filed a memorandum opinion denying relief. This appeal followed.
In early 1976 petitioner and another individual identified as Jackie Cooper were arrested by Nevada County authorities and charged with the burglary of and felony theft of property from a business establishment in the small town or community of Bluff City in Nevada County.
In addition, petitioner, individually, was charged under the pertinent Arkansas statute with being an habitual criminal; if convicted upon the latter charge as well as on the substantive charges petitioner would be subject to substantially enhanced punishment.
Petitioner was unable to furnish bail and was held pending trial in the county jail of Nevada County in Prescott, Arkansas. He remained there until he was tried in October, 1976. In the meantime, Jackie Cooper had given a statement to investigating officers that implicated petitioner in the burglary and theft.
When the case came on for trial originally, petitioner was represented by appointed counsel, Glen Vasser of Prescott, and Cooper was represented by another attorney, Charles L. Honey of Prescott. The trial was to a jury, with Circuit Judge John Goodson of Texarkana, Arkansas, presiding.
The trial having begun, Cooper was called as a witness by the State. In his testimony Cooper repudiated his statement implicating petitioner in the crime.
[685]*685Immediately after the repudiation and before the ease could go further, Judge Goodson was called to the telephone. He left the bench with Cooper still in the witness box, with the jurors present, and with petitioner, the prosecuting attorney, and both defense lawyers also present.
Before Judge Goodson returned to the courtroom, Mr. Honey approached his client, Jackie Cooper, and told him in a “low voice” to cease lying. This remark was overheard by counsel, and it is inconceivable that it was not overheard by at least one or more of the jurors since, according to the evidence, there was little more than an arm’s length distance between the witness box and the jury box.
Mr. Vasser feared that the remark had in fact been overheard by the jury, and that it was highly prejudicial to his client. Accordingly, when the trial judge returned to the bench Mr. Vasser indicated that he desired to move for a mistrial.
The circuit judge then excused the jury for lunch, and he and counsel for both sides and the petitioner repaired to chambers at which time Mr. Vasser formally moved for a mistrial. The prosecuting attorney indicated that he had no objection to the granting of the motion, and it was formally granted.
At this point the judge and the lawyers went to lunch and petitioner was carried back to jail for his noon meal.
During the noon hour petitioner decided that he did not want the case mistried because if a mistrial were declared he would have to remain confined in the local jail for a period of time about equal to that during which he had already been confined.2
Before court reconvened after lunch petitioner and his lawyer had a brief conference in the course of which petitioner stated that he did not want the case mistried. Counsel told petitioner that he thought that the case should be mistried. Petitioner, however, adhered to his position and requested counsel to advise Judge Goodson of his attitude. Counsel agreed to do so, and the question of whether he did or not is a crucial one in this case.
After the noon hour Judge Goodson reconvened court, told the jury that a mistrial had been declared and excused the jury from further consideration of the case. He • then heard Mr. Vasser on behalf of his client formally object to the mistrial and also permitted petitioner to make a statement on his own behalf. As of that time it was too late for the circuit judge to have done anything about the mistrial order if he had been inclined to do so.
By that time affairs had reached the stage at which it was clear that a serious difference had arisen between petitioner and Mr. Vasser. The latter was relieved of his duties, and in due course petitioner’s present counsel, Mr. James E. Davis of Tex-arkana, was appointed to represent him.
After the mistrial had been declared in the fall of 1976 petitioner was returned to the county jail where he remained until the second trial of the case in the spring of 1977.
In the interim between the two trials-petitioner moved pro se and by new counsel to dismiss the information against petitioner on the grounds that he had been denied his sixth amendment right to a speedy trial, and that a second trial would subject petitioner to double jeopardy prohibited by the fifth amendment as carried forward into the fourteenth amendment.
A second jury trial was presided over by Judge Hugh Lookadoo of Arkadelphia. The petitioner was found guilty and was sentenced to imprisonment for one term of ten years and another term of five years. Judge Lookadoo imposed sentence but directed that petitioner be given credit for the time that he had spent in jail.
Petitioner appealed to the Supreme Court of Arkansas assigning a number of errors including his claims that he had been denied a speedy trial and had been subjected to [686]*686double jeopardy. Those contentions, and others, were rejected, and the conviction and sentence of petitioner were affirmed. . Walker v. State, 556 S.W.2d 655 (Ark.1977). As to petitioner’s contentions about speedy trial and double jeopardy, the Arkansas court said (556 S.W.2d at 656):
First, there is no merit in the argument that Walker was subjected to double jeopardy and denied a speedy trial. At the first trial of the case an incident occurred during a recess that led Walker’s attorney to ask for a mistrial. The State did not resist the motion. After the mistrial had been granted and the jury had been discharged, Walker himself asked that a mistrial not be declared. Of course, it was then too late for that request to be granted, as the jury had been discharged; so the court denied Walker’s request.
The court’s action was plainly proper, for in a matter of this kind the defendant must be bound by his attorney’s judgment with regard to the motion for a mistrial. That the State acquiesced in the motion confirms the correctness of defense counsel’s position. Hence there was neither double jeopardy nor a denial of a speedy trial, for the time ran anew after the declaration of a mistrial. Rule 28.2(c), Rules of Criminal Procedure (1976). It is conceded that the case was retried within the time allowed by Rule 28.1(a).
Having exhausted state remedies, petitioner, still represented by Mr. Davis, commenced his action in the district court on January 9, 1979. Respondent (actually the State) resisted the motion. A full eviden-tiary hearing was held in the district court in July, 1979. In the course of that hearing petitioner testified and called witnesses. There was also introduced into evidence a complete transcript of the proceedings in the Nevada County circuit court, and the district judge caused a transcript of the habeas corpus hearing to be made.
The district judge considered all of the materials before him and on July 30, 1979 filed his memorandum opinion denying relief. A formal order to that effect was entered on the same day, and this appeal followed.
In his initial proceeding in the district court petitioner contended both that he had been denied a speedy trial and that he had been subjected to double jeopardy. The district court rejected both contentions. The speedy trial contention was insubstantial, and it is not being pressed in connection with this appeal. We are, therefore, concerned with the double jeopardy claim only.
The petitioner contended and testified in the district court that he was not present in chambers when defense counsel moved for a mistrial and when it was formally granted by the circuit judge. The district court discredited petitioner’s testimony on that point and found that he was present and did not object to the granting of the motion that Mr. Vasser had made. That finding is fully supported by the transcript of the 1976 proceedings in the circuit court, and by evidence heard by the district court. Certainly it was not clearly erroneous. Accordingly, we accept that finding. Let us make it clear, however, that the proceeding in chambers about which we are talking took place prior to the lunch break taken by the circuit judge and the lawyers, and prior to the time at which the jury returned to the box, was told that a mistrial was being declared, and that the jurors were excused from further consideration of the case.
It is at this point that the importance of the question of whether Mr. Vasser advised Judge Goodson during the noon hour of petitioner’s opposition to the granting of a mistrial comes into focus. Because, if the circuit judge was advised of the defendant’s position, simply ignored it, and proceeded to go into the courtroom and discharged the jury, at which point the judge’s action became irreversible, we have a serious due process problem in the light of the holding of the Supreme Court of the United States in Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966).
[687]*687That case teaches that in general defense counsel in a criminal case cannot validly waive a constitutionally protected right of the defendant in the absence of an intelligent and voluntary consent by the defendant to the action that counsel proposes to take, and certainly that rule comes into play where the defendant expressly conveys to his attorney his objection to the proposed action.
The Janis rule may not apply, however, in the unusual case in which exceptional circumstances exist which make it mandatory in the interest of justice to permit a waiver of a constitutional claim over the objection of the defendant. Brookhart v. Janis, supra, 384 U.S. at 7, 86 S.Ct. at 1248, citing Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965).
Certainly, the right to be free from double jeopardy is a federally protected right, and in the absence of exceptional circumstances as suggested in Janis and Henry, supra, it would seem clear that the right to be free from such jeopardy includes the right to be free from double jeopardy resulting from a second trial following an improperly granted original mistrial over the objection of the defendant.
If during the noon hour that has been mentioned, the circuit judge was in fact advised of the attitude of the petitioner it would have been easy for the judge to have called petitioner and counsel back into chambers and to have explored the matter further. As of that time the jury had not been advised of a mistrial and discharged. To put it this way, the judge could have done before discharging the jury what he did in open court after the jury had been discharged.
As to whether the circuit judge was advised of petitioner’s position prior to discharging the jury, the findings of the district court are indefinite to say the least.
Mr. Vasser testified before the district court that at the instance of the petitioner he did advise the circuit judge during the noon hour that the petitioner did not want a mistrial. Circuit Judge Goodson while a resident of Texarkana where the habeas corpus hearing was held was not called as a witness, and apparently no effort was made to secure his testimony by deposition or otherwise.
To the extent that the district court found that Judge Goodson was not advised during the noon hour of petitioner’s objection to having a mistrial declared, we consider such a finding to have been clearly erroneous, and we reject it.
Nor can we uphold the district court’s decision on the basis of the holding of the Arkansas Supreme Court that has been mentioned, which basis is related to 28 U.S.C. § 2254(d). That subsection of § 2254 provides in substance that where in a federal habeas corpus case a factual issue raised by petitioner has been considered by the state courts after an appropriate hearing, a determination of the state courts is presumptively correct, unless one or more of eight defects appear. Here, the specific double jeopardy contention raised by petitioner in this case based on the communication to the circuit judge of petitioner’s objection to a mistrial has never been the subject of any state court determination following a hearing as contemplated by the statute.
The communication of Mr. Vasser to the circuit judge was informal and off the record and naturally did not appear in the transcript that the Arkansas Supreme Court considered. In the course of the direct appeal petitioner apparently did not deny that he was present in chambers when the defense motion for a mistrial was made and confessed by the prosecuting attorney. There was nothing in the record before the Arkansas Supreme Court to indicate that the circuit judge had been advised informally that petitioner was objecting to a mistrial.
We are also unable to agree with the district court that by noon on October 20, 1976 such a difference had arisen between petitioner and Mr. Vasser, that Vasser could no longer properly and ethically continue to represent petitioner. In our view had the circuit judge upon being advised of [688]*688the attitude of petitioner called him and counsel back into chambers, and had overruled the motion for a mistrial, the trial could have proceeded properly with Mr. Vasser representing petitioner.
We conclude that the general rule of Jams, supra, applies unless exceptional circumstances existed which required the circuit judge in the ends of justice to order a mistrial even over the objection of petitioner. We are satisfied that such circumstances existed.
As indicated, the statement made by Mr. Honey to his client, Jackie Cooper, was overheard by defense counsel, was apparently overheard by the prosecuting attorney, and must have been heard by some or all of the jurors. The testimony of Cooper, which Mr. Honey labelled as false, exculpated petitioner from the crimes in question. That testimony directly contradicted an earlier statement made by Cooper to law enforcement officers, and Honey’s characterization of the testimony as false was found to have a seriously prejudicial effect on the jury. Moreover, any inquiry by the circuit judge to the jurors as to the statement in question would simply have enhanced the prejudice.
In such circumstances we think that the ends of justice imperatively commanded the granting of a mistrial even over the objection of the defendant, which objection was but an afterthought when the defendant realized that he would have to remain in the Nevada County jail pending retrial. Had the trial court denied the defense motion for a mistrial, that action might well have been the subject of a post-trial complaint on the part of petitioner. For a general discussion of the subject see our opinion in United States v. Martin, 561 F.2d 135 (8th Cir. 1977).
The judgment of the district court is affirmed.