Jose Redani Hernandez v. Neil McDowell, No. 2:2016cv03039 - Document 29 (C.D. Cal. 2019)

Court Description: ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Josephine L. Staton for Report and Recommendation (Final) 23 . Having completed its review, the Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1)the Petition is DENIED; and (2) Judgment shall be entered dismissing this actionwith prejudice. (ec)

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Jose Redani Hernandez v. Neil McDowell Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE REDANI HERNANDEZ, 12 Petitioner 13 v. 14 NEIL McDOWELL, Warden, 15 Case No. 2:16-cv-03039-JLS (GJS) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (“Petition”), 19 all pleadings and other documents filed in this action, the Report and 20 Recommendation of United States Magistrate Judge (“Report”), and Petitioner’s 21 untimely Objections to the Report.1 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. 22 R. Civ. P. 72(b), the Court has conducted a de novo review of those portions of the 23 Report to which objections have been stated. 24 25 26 27 28 The Magistrate Judge twice extended Petitioner’s deadline to file Objections to the Report, which ultimately were due by December 27, 2018. Although Petitioner did not file his Objections until January 14, 2019, they are being considered despite their untimeliness. The Court rejects Petitioner’s contention set forth in the Objections that the Magistrate Judge afforded him “no time” to prepare and file his Objections. The Report issued on September 27, 2018, and Petitioner has had over three months to respond to it. 1 Dockets.Justia.com 1 In the Objections, Petitioner raises a number of new habeas claims, such as 2 claims based on alleged ineffective assistance of counsel and First Amendment 3 violation (Objections at 20-23) and insufficiency of the evidence and false testimony 4 (id. at 29-31). These claims were not included within the ten habeas claims alleged 5 in the Petition, which are addressed in the Report. These newly-proffered claims 6 also were not raised in Petitioner’s state direct appeal and, thus, are unexhausted. 7 A district court has discretion, but is not required, to consider evidence or 8 arguments presented for the first time in objections to a report and recommendation. 9 See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 10 231 F.3d 615, 621-22 (9th Cir. 2000). The Court exercises its discretion to reject 11 considering these belatedly-raised, unexhausted claims and their underlying 12 arguments, as it is inappropriate to raise new habeas claims for the first time in 13 objections to a report and recommendation. See Greenhow v. Secretary of Health & 14 Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (“allowing parties to litigate 15 fully their case before the magistrate and, if unsuccessful, to change their strategy 16 and present a different theory to the district court would frustrate the purpose of the 17 Magistrate Act”), overruled on other grounds by United States v. Hardesty, 977 18 F.2d 1347, 1348 (9th Cir. 1992) (en banc); see also Rule 2(c)(1) of the Rules 19 Governing Section 2254 Cases in the United States District Courts (the petition 20 “must” “specify all grounds for relief available to the petitioner”). 21 Having completed its review, the Court accepts the findings and 22 recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) 23 the Petition is DENIED; and (2) Judgment shall be entered dismissing this action 24 with prejudice. 25 26 27 28 DATE: February 21, 2019 __________________________________ JOSEPHINE L. STATON UNITED STATES DISTRICT JUDGE 2

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