124 F.3d 212
Anthony Albert TALANAY, Petitioner-Appellant,
Linda CLARKE, Warden, State Prison at Soledad; Daniel E.
Lundgren, Attorney General, for the State of
United States Court of Appeals, Ninth Circuit.
Submitted September 8, 1997.**
Filed September 15, 1997.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Appeal from the United States District Court for the Central District of California, D.C. No. CV-95-06204-R(JR); Manuel L. Real, District Judge, Presiding.
Before HALL, BRUNETTI, and THOMAS, Circuit Judges.
Anthony Talanay, a California state prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 habeas petition challenging his jury conviction and life term for attempted murder and mayhem of his stepfather. As to Talanay's contentions regarding the two special jury instructions and the alleged prosecutorial misconduct, we affirm for the reasons set forth in the magistrate judge's report and recommendation, adopted by the district court in its Order filed on March 19, 1996. Talanay's contention that his conviction is erroneous because the crime of attempted second degree murder does not exist was not properly raised in district court and therefore is not cognizable on appeal. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994) (holding that claims presented for the first time in the traverse were not cognizable on appeal). Moreover, we note that Talaney was convicted of a crime that does exist, attempted murder in violation of Cal.Pen.Code § 664/187.