                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 18 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JAMES ALLEN THOMPSON,                            No. 12-17017

              Petitioner - Appellant,            D.C. No. 1:08-cv-00218-SOM-
                                                 KSC
  v.

TODD THOMAS, Warden, Saguaro                     MEMORANDUM*
Correctional Facility; JODIE F.
MAESAKA-HIRATA, Director,
Department of Public Safety, State of
Hawaii; JOE W. BOOKER, Jr., Deputy
Director for Corrections, Department of
Public Safety, State of Hawaii; DAVID M.
LOUIE, Attorney General, State of
Hawaii,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Hawai‘i
                Susan Oki Mollway, Chief District Judge, Presiding

                     Argued and Submitted February 19, 2014
                               Honolulu, Hawai‘i

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      James Allen Thompson appeals the district court’s partial denial of his 28

U.S.C. § 2254 habeas corpus petition challenging his jury conviction of multiple

sexual assault and kidnapping crimes. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291, 2241, 2253–54, and we affirm.

      We review de novo a habeas petitioner’s exhaustion of state remedies as

well as the district court’s denial of a petition for habeas relief. Chambers v.

McDaniel, 549 F.3d 1191, 1195 (9th Cir. 2008); Bailey v. Hill, 599 F.3d 976, 978

(9th Cir. 2010). To exhaust available remedies, a petitioner must “fairly present[]

his federal claims to the highest state court available.” Davis v. Silva, 511 F.3d

1005, 1008 (9th Cir. 2008) (alteration in original) (internal quotation marks

omitted). A petitioner presents his claim by “describ[ing] in the state proceedings

both the operative facts and the federal legal theory on which [the petitioner’s]

claim is based so that the state courts have a fair opportunity to apply controlling

legal principles to the facts bearing upon [the petitioner’s] constitutional claim.”

Id. at 1009 (internal quotation marks omitted). By establishing the key facts and

citing to the federal double jeopardy standard, Oregon v. Kennedy, 456 U.S. 667

(1982), Thompson exhausted his federal double jeopardy claim before the Hawai‘i

Supreme Court. See Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2004).




                                           2
       Under Harrington v. Richter, “[w]hen a federal claim has been presented to

a state court and the state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any indication or

state-law procedural principles to the contrary.” 131 S. Ct. 770, 784–85 (2011).

Under our deferential standard of review, we may not grant federal habeas relief

unless the state court’s adjudication of the claim “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1); see also Brown v. Payton, 544 U.S. 133, 141 (2005). Thompson

argues only that the Hawai‘i Supreme Court’s decision was “contrary to” Kennedy.

We conclude that the state’s decision did not contradict clearly established federal

law.

       Even assuming the Richter presumption does not apply because the state

court expressly applied the state standard, we are not persuaded by Thompson’s

claim. On de novo review, we hold that the trial court fully considered the

prosecutor’s conduct and correctly determined that his behavior was not “intended

to ‘goad’ the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 676.

       AFFIRMED.




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