Abernathy

MEMORANDUM **

Christian Matthew Abernathy appeals the district court’s denial of his petition for writ of habeas corpus. Abernathy was convicted of first degree murder, robbery, attempted robbery, and assault in California state court. He seeks federal habeas relief on the grounds that errors in the jury instructions deprived him of due process and his right to jury trial, and that under principles of Eighth Amendment law explained in Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1986), which have been incorporated into California law, there was insufficient evidence to support his conviction. Habeas relief is not available unless the underlying state court decision was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. Early v. Packer, ___ U.S. ___, 123 S.Ct. 362, 366 , 154 L.Ed.2d 263 (2002). We review de novo the decision to grant or deny a 28 U.S.C. § 2254 habeas petition. See Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002). Findings of fact made by the district court are reviewed for clear error. Killian v. Poole, 282 F.3d 1204, 1207 (9th Cir.2002). State court findings of fact are…