Eldridge

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 HOWARD FORBES, No. 2:16-cv-01884 MCE GGH P Petitioner, v. FINDINGS AND RECOMMENDATIONS L. ELDRIDGE, Respondent. 16 17 Introduction and Summary Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c). Petitioner’s primary claim involves the seemingly inadvertent failure on the part of the trial court to give the defense requested “Fifth Amendment-no-need-for-defendant-to-testify” instruction, a constitutional violation conceded in this case. Because the prosecutor in final argument commented inferentially on petitioner’s failure to testify, the omission in giving the instruction following such comment makes this a much closer prejudice case than the state Court of Appeal set forth. //// The remaining claims, 2, 3, 4…