stating that a district court has discretion, but is not required, to consider 25 evidence or claims presented for the first time in objections to a report and recommendation
How later courts described this case
- stating that a district court has discretion, but is not required, to consider 25 evidence or claims presented for the first time in objections to a report and recommendation
Written by the judges who cited it.
The opinion
Case 2:21-cv-05878-FMO-GJS Document 25 Filed 03/01/23 Page 1 of 2 Page ID #:1086
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 JOSE GARCIA, ) Case No. CV 21-5878 FMO (GJS)
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12 Petitioner, )
) ORDER ACCEPTING AMENDED REPORT
13 v. ) AND RECOMMENDATION OF UNITED
) STATES MAGISTRATE JUDGE
14 M. GAMBOA, Warden, )
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15 Respondent. )
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17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, and
18 the Amended Report and Recommendation of the United States Magistrate Judge. The Court has
19 engaged in a de novo review of those portions of the Amended Report and Recommendation to
20 which Petitioner has objected.
21 The Court recognizes that Petitioner has presented for the first time in his Objections a
22 sentencing error claim. (Dkt. 24, “Objections” at 8, 11-13). The Court exercises its discretion to
23 decline to consider Petitioner’s belatedly presented claim. See Brown v. Roe, 279 F.3d 742, 744-
24 45 (9th Cir. 2002) (stating that a district court has discretion, but is not required, to consider
25 evidence or claims presented for the first time in objections to a report and recommendation).1
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27 1 The Court notes that it appears Petitioner’s sentencing error claim is unexhausted because
he has not presented it to the California Supreme Court. “AEDPA prohibits federal courts from
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granting habeas relief on claims for which the petitioner has not ‘exhausted the remedies available
Case 2:21-cv-05878-FMO-GJS Document 25 Filed 03/01/23 Page 2 of 2 Page ID #:1087
1 Otherwise, Petitioner's Objections lack merit for the reasons stated in the Amended Report and
2 Recommendation.
3 IT IS THEREFORE ORDERED that the Amended Report and Recommendation is
4 accepted and Judgment be entered denying the Petition and dismissing this action with prejudice.
5 Dated this 1st day of March, 2023.
6 /s/
FERNANDO M. OLGUIN
7 UNITED STATES DISTRICT JUDGE
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27 in the courts of the State.’” See Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021) (quoting
28 U.S.C. § 2254(b)(1)(A)). “Exhaustion requires that a petitioner fairly present his federal claims
28 to the highest state court available.” Id. (internal quotation marks and citation omitted)).
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