                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 23 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



WILLIE LEE JEFFERSON,                            No. 08-15964

               Petitioner - Appellant,           D.C. No. 3:02-CV-00023-PMP

  v.
                                                 MEMORANDUM *
GREGORY SMITH; et al.,

               Respondents - Appellees.



                     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.




          *
             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).
      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.


                                           2                                    08-15964
