Johnny Ray Washington v. CHARLES L. RYAN, Director, AZ Department of Corrections

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY RAY WASHINGTON,
Petitioner - Appellant,
v.
CHARLES L. RYAN, Director, AZ*
Department of Corrections and STATE OF
ARIZONA ATTORNEY GENERAL,
Respondents - Appellees.
No. 08-17039
D.C. No. 2:07-cv-00008-JAT
MEMORANDUM**
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.
FILED
DEC 13 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-17039 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.

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