Willie Lee Jefferson v. Gregory Smith;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE LEE JEFFERSON,
Petitioner - Appellant,
v.
GREGORY SMITH; et al.,
Respondents - Appellees.
No. 08-15964
D.C. No. 3:02-CV-00023-PMP
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Nevada state prisoner Willie Lee Jefferson 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, and we affirm.
FILED
JUL 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-15964 2
Jefferson contends that he received ineffective assistance of counsel because
his trial counsel failed to raise a double jeopardy challenge during his second trial
after the trial court had granted his prior motion for a mistrial. The Nevada court’s
conclusion that Jefferson did not receive ineffective assistance because dismissal
on double jeopardy grounds was unwarranted as Jefferson requested the mistrial
and the prosecutor did not intend to provoke it was not contrary to, or an
unreasonable application of, clearly established Supreme Court law, and was not
an unreasonable determination of the facts in light of the evidence. See 28 U.S.C.
§ 2254(d); see also Strickland v. Washington, 466 U.S. 668, 687 (1984); Oregon v.
Kennedy, 456 U.S. 667, 679 (1982).
Jefferson also contends that he received ineffective assistance of counsel
because his counsel failed to obtain an eyewitness identification expert to testify at
trial. The Nevada court’s conclusion that Jefferson failed to demonstrate that he
was prejudiced by the lack of such expert testimony was also not contrary to, or an
unreasonable application of, clearly established Supreme Court law, and was not
an unreasonable determination of the facts in light of the evidence. See 28 U.S.C.
§ 2254(d); see also Strickland, 466 U.S. at 694; cf. United States v. Labansat, 94
F.3d 527, 530 (9th Cir. 1996).
AFFIRMED.

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