Opinion
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
J. SPENCER LETTS, 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, and the remaining record. The Court has made a de novo determination.
The Objections lack merit. They essentially restate Petitioner's claim that the state court should have sua sponte given an instruction on the accident defense because the elderly victim, Petitioner's friend of thirty years, testified at trial that he believed the shooting was an accident. But the omission of the accident instruction did not prevent Petitioner from arguing to the jury that the shooting was accidental. Indeed, Petitioner did make that argument ( see RT at 374-75), but the jury rejected Petitioner's defense theories and found that Petitioner's actions were intentional ( see RT at 395, 399-400, 402, 418). For this and the other reasons set forth in the Report and Recommendation, the omission of an accident instruction did not violate due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). Nor did it have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Accordingly, 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.