Willie Jefferson v. Gregory Smith

389 F. App'x 643

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2010
• Docket: 08-15964
• Status: Unpublished

Opinion

MEMORANDUM **

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.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (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, 104 S.Ct. 2052; cf. United States v. Labansat, 94 F.3d 527, 530 (9th Cir.1996).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.