Johnny Washington v. Dora Schriro, et al, No. 08-17039 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 13 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOHNNY RAY WASHINGTON, Petitioner - Appellant, No. 08-17039 D.C. No. 2:07-cv-00008-JAT v. MEMORANDUM ** CHARLES L. RYAN,* Director, AZ Department of Corrections and STATE OF ARIZONA ATTORNEY GENERAL, Respondents - Appellees. Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding Submitted December 6, 2010 *** Before: GOODWIN, RYMER, and GRABER, Circuit Judges. * Charles L. Ryan is substituted for his predecessor, Dora B. Schriro, as Director of the Arizona Department of Corrections, pursuant to Fed. R. App. P. 43(c)(2). ** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Arizona state prisoner Johnny Ray Washington appeals from the district court s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253(c), and we affirm. Washington contends that the prosecutor in his first trial intended to provoke the defense into moving for a mistrial and that, consequently, his retrial violated the Double Jeopardy Clause of the 5th Amendment. Washington s contention is not supported by the record. Accordingly, the state court s decision was not contrary to, or an unreasonable application of, clearly established Supreme Court law, or an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d); see also Oregon v. Kennedy, 456 U.S. 667, 676 (1982) ( [o]nly where the governmental conduct in question is intended to goad the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion ). AFFIRMED. 2 08-17039

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