Terhune

ORDER

Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local General Order No. 262.

This action proceeds from petitioner’s second amended petition filed May 21, 2002. The second amended petition raised two claims: jury instruction error and ineffective assistance of counsel (“LAC”) based on the failure to present evidence of voluntary intoxication. On April 16, 2003 the magistrate judge assigned to this case recommended that the petition be denied. On September 10, 2003, this court declined to adopt the findings and recommendations with respect to petitioner’s ineffective assistance of counsel claim and remanded the matter for an evidentiary hearing. See September 10, 2003 Order.

An evidentiary hearing was held on November 8, 2004 and November 23, 2004. On November 7, 2006, the magistrate judge filed findings and recommendations which were served on the parties. The magistrate judge recommended that the petition be denied. Petitioner filed timely objections.

In accordance with the…