Anthony Albert Talanay, Petitioner-appellant, v. Linda Clarke, Warden, State Prison at Soledad; Daniel E.lundgren, Attorney General, for the State Ofcalifornia, Respondents-appellees, 124 F.3d 212 (9th Cir. 1997)

MEMORANDUM^* 

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.

AFFIRMED.