                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 13 2010

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




                             FOR THE NINTH CIRCUIT



JOHNNY RAY WASHINGTON,                           No. 08-17039

                Petitioner - Appellant,          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
