FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on February 13, 2007, in the Butte County Superior Court on a charge of petty theft. He seeks federal habeas relief on the grounds that his right to due process was violated by jury instruction error. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following summary:
Wal-Mart employees observed defendant enter the store's electronics department, pick up two ink cartridges, conceal them in his jacket and carry them into the men's restroom. When he came out of the restroom, he was no longer carrying the cartridge boxes. Defendant then returned to the electronics department, secreted a computer flash drive in the sleeve of his jacket and returned to the restroom. He then left the store without paying for the items. Store employees found empty ink cartridge packaging in the restroom.
Defendant was charged with petty theft with priors (§ 666). The information alleged a prior conviction of a serious or violent felony (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)) and two prior prison terms (§ 667.5, subd. (b)).
On the first day of trial, outside the presence of the jury, defendant admitted two prior convictions (one for a violation of section 211 and one for a violation of Health and Safety Code section 11352) for which he served separate prison terms. The parties stipulated that, for purposes of trial, the charge submitted to the jury would be petty theft (§ 484); however, based on defendant's admissions, a guilty verdict on that charge would result in a finding that defendant was guilty of petty theft with priors (§ 666).
The jury returned a guilty verdict on the single count of petty theft. Based on defendant's previous admission of the theft-related priors, the court found defendant guilty of violating section 666. The court denied defendant's Romero*fn2 motion and sentenced him to the middle term of two years, doubled because of the strike, plus one year for each of the two prior prison terms, for an aggregate sentence of six years.*fn3
Defendant filed a timely notice of appeal.
I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...