ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

PERCY ANDERSON, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, First Amended Petition, records on file, and Report and Recommendation of U.S. Magistrate Judge, which recommends that Petitioner's request for appointment of counsel be denied, the FAP be denied, and this action be dismissed with prejudice. On January 9, 2019, Petitioner filed Objections to the R. & R.

The Objections largely reargue the merits of Petitioner's claim that Penal Code section 211 is void for vagueness under Johnson v. United States, 135 S.Ct. 2551, 2561-63 (2015), and that his 2004 conviction for second-degree robbery therefore cannot stand. (See Objs. at 2-3.)1 He nowhere contests the Magistrate Judge's sound conclusion (see R. & R. at 20-21) that he may not now collaterally attack that conviction through his current challenge to his 2011 convictions for shooting at an occupied motor vehicle and other offenses. Instead, he cites United States v. Dixon, 805 F.3d 1193, 1198 (9th Cir. 2015), which found that section 211 "criminalizes conduct not included in the [Armed Career Criminal Act]'s definition of `violent felony.'" (See id. (citation omitted).) But as the Magistrate Judge correctly pointed out, he was not sentenced under the ACCA, and in any event section 211 makes abundantly clear what conduct is prohibited and California statutorily defines "any robbery" as a "violent felony." (See R. & R. at 17-19); see also Penal Code §§ 211, 667.5(c)(9). That framework is untouched by Johnson, 135 S. Ct. at 2555-56, as the Magistrate Judge discussed in the R. & R. (See R. & R. at 18-19.)2 His objection on this ground is therefore without merit.

Petitioner further objects that his 2011 conviction under section 246 (which prohibits shooting into an occupied motor vehicle) should be remanded for resentencing because that provision and section "212.5 second degree robbery" are "[r]eally" "void for vagueness" and the "Constitution of California" has called them "Non-Violent." (Objs. at 3.) He has not cited any state constitutional provision saying that, however, and the Court knows of no such definition. The provision he does cite (see id.) provides that a person convicted of a nonviolent felony offense and sentenced to state prison "shall be eligible for parole consideration after completing the full term" for his "primary offense," Cal. Const. art. 1, § 32(a)(1). The FAP did not raise any claim to habeas relief based on denied or delayed parole (see generally FAP at 16-28, 30-34), and as noted in the R. & R. (see R. & R. at 16), section 246 is statutorily defined as a "serious felony" for purposes of the Three Strikes Law regardless of whether it might also be a violent felony, see Penal Code §§ 667 & 1192.7(c)(33). Thus, the relevance of that constitutional provision to his claims is not readily apparent.

Further, Petitioner was not, as he now appears to believe (see Objs. at 3), convicted of violating section 212.5, which makes robbery committed on public transit or of an inhabited home, "floating home," or "trailer coach," or of a person using or who has just used an ATM, robbery of the first degree, see Penal Code § 212.5, and it therefore does not appear relevant to the claims of the FAP. This objection is not well taken.

Petitioner also objects conclusorily to the Magistrate Judge's finding that he was not entitled to habeas relief on his instructional-error claim; in his view, the trial judge had a "contractual `duty'" to instruct the jury "of a lesser included offence [sic]." (Objs. at 3.) He cites no case law, much less clearly established Supreme Court precedent, to support that contention (see id.); indeed, he cannot because as the Magistrate Judge discussed, no such clearly established law exists, and in any event the evidence at trial gave no support whatsoever for his desired instruction (see R. & R. at 23-28). Thus, his objection on this ground also fails.

Having reviewed de novo those portions of the R. & R. to which Petitioner objects, the Court agrees with and accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that Petitioner's request for appointment of counsel be denied and the FAP be dismissed with prejudice.