Walter Clinton Nicholson, Petitioner-appellant, v. Samuel Lewis, et al., Respondents-appellees, 977 F.2d 590 (9th Cir. 1992)

MEMORANDUM^** 

Walter Clinton Nicholson, an Arizona state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. He was convicted of sale of narcotic drugs, possession of narcotic drugs for sale, and possession of marijuana following a second trial ordered by the Arizona Court of Appeals because of prosecutorial misconduct at his first trial. He contends that his retrial violated the double jeopardy clause. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

We review de novo the district court's denial of a habeas petition and accept its fact findings unless they are clearly erroneous. Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.), cert. denied, 111 S. Ct. 95 (1990). State court fact findings are entitled to a presumption of correctness. 28 U.S.C. § 2254(d); Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir. 1989). Nonetheless, " [a] habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentiary hearing in a state court." O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quotation omitted), cert. denied, 111 S. Ct. 986 (1991). We review the district court's decision whether to hold an evidentiary hearing for an abuse of discretion. Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir. 1991).

Because trial error implies nothing with respect to guilt or innocence, the double jeopardy clause generally does not prohibit the state from retrying a defendant whose conviction is reversed on appeal. Lockhart v. Nelson, 488 U.S. 33, 39-40 (1988) (but retrial barred if reversal is based solely on insufficiency of evidence). Double jeopardy does, however, prohibit a second trial when "prosecutorial misconduct [is] committed with the intent to force the defendant [to move for a mistrial]." Greyson, 937 F.2d at 1413 (citing Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982)).¹ 

Here, the Arizona Court of Appeals found that the prosecutor's improper comments on Nicholson's post-arrest silence were "deliberate."²  The state court did not, however, make any finding as to whether the prosecutor intended to force Nicholson to move for a mistrial. See id. Based on its review of the trial transcript, the district court found that the prosecutor's "intent was to attack the entrapment defense by attacking the petitioner's credibility. There is no evidence that the prosecutor intended to 'goad' the defendant into moving for mistrial." This finding was not clearly erroneous. See Jones, 899 F.2d at 884. A review of the transcript makes it clear that causing a mistrial would not have been in the interests of the prosecution. See Kennedy, 456 U.S. at 675 (prosecutor's intent must be inferred "from objective facts and circumstances"). Accordingly, the district court did not err by denying Nicholson's double jeopardy claim without an evidentiary hearing. See Greyson, 937 F.2d at 1413; O'Bremski, 915 F.2d at 420.

AFFIRMED.