Hogan

MEMORANDUM **

Appellant Brian Hogan appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254 . Hogan was convicted in California state court of possession of a destructive device in a public place, in violation of CalPenal Code § 12303.2, and possession of material with the intent to make a destructive device, in violation of CalPenal Code § 12312. In his petition, Hogan claimed that: (1) his conviction was based upon insufficient evidence, in violation of his rights under the Due Process Clause; (2) the prosecutor committed prejudicial misconduct by making reference to Hogan’s failure to testify, in violation of Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965); and (3) that trial counsel’s failure to object to the purported Griffin violation constituted prejudicial ineffective assistance of counsel.

With respect to a challenge to the sufficiency of the evidence, under the standards of the AEDPA, “[sjtate court findings of fact are to be presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir.2002)(alteration in…