Opinion
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
OTIS D. WRIGHT, II, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record.
Petitioner's Objections essentially rehash the arguments in the Petition and Traverse. Additionally, Petitioner contends that the state court's denial of his jury instruction claim was on state law grounds and, therefore, is not entitled to deference under 28 U.S.C. § 2254(d). Petitioner is incorrect. The state court expressly considered Petitioner's federal constitutional challenge to the instruction and denied the claim on the merits. ( See Objs., Ex. 1 at 25.) In any event, Petitioner's claim does not warrant habeas relief even under de novo review because the jury instruction did not violate Petitioner's constitutional rights for the reasons stated in the Report and Recommendation; the instruction benefitted Petitioner and did not relieve the prosecution of its burden of proof on any of the elements of the charged crimes. See Sandstrom v. Montana. 442 U.S. 510, 520 (1979) (constitutional validity of presumption in jury instruction depends on whether it had the effect of relieving the prosecution of its burden of proving the facts necessary to constitute the crime charged).
Accordingly, having made a de novo determination of those portions of the Report and Recommendation and any proposed findings or recommendations to which objection is made, IT IS ORDERED THAT:
(1) the Report and Recommendation is approved and adopted;
(2) judgment be entered denying the Petition and dismissing this action with prejudice; and
(3) the Clerk serve copies of this Order and the Judgment on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.