CDCR

MEMORANDUM

Jose David Romero (“Romero”) appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his California state court conviction for first degree felony murder. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

Romero first claims that the trial court’s dismissal of the robbery count at the close of evidence violated his due process right to a fair trial because it “gutted” his defense that his lack of knowledge of the victim’s presence made him guilty of theft and not felony murder. Romero does not cite, nor have we identified, any United States Supreme Court authority clearly establishing a constitutional right to the retention of a particular charge and corresponding jury instruction on a lesser offense in a non-capital case. Cf. Beck v. Alabama, 447 U.S. 625, 627 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980) (holding that the death penalty may not be imposed when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense). Further, the jury was instructed on the elements of felony murder, as well as the underlying felonies of robbery, kidnapping, and carjacking,…