Jonathan Gonzalez v. B. Cates, No. 2:2021cv06316 - Document 30 (C.D. Cal. 2023)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Otis D. Wright, II for Report and Recommendation (Issued), 22 , NOTICE OF MOTION AND MOTION to AMEND Petition for Writ of Habeas Corpus (2254) 1 28 H aving completed its review, the Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that: the Petition is DENIED; the Motion is DENIED; and Judgment shall be entered dismissing this action with prejudice. (es)

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Jonathan Gonzalez v. B. Cates Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JONATHAN GONZALEZ, 12 13 14 15 Case No. 2:21-cv-06316-ODW (GJS) Petitioner ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE v. B. CATES, Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all 19 documents filed and lodged in this action, the Report and Recommendation of 20 United States Magistrate Judge [Dkt. 11, “Report”], Petitioner’s Objections to the 21 Report [Dkt. 27], and Petitioner’s Motion To Amend Habeas Petition [Dkt. 28, 22 “Motion”]. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the 23 Court has conducted a de novo review of those portions of the Report to which 24 objections have been stated. 25 A district court has discretion, but is not required, to consider arguments 26 presented for the first time in objections to a report and recommendation. See 27 Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 28 F.3d 615, 621-22 (9th Cir. 2000). In the Motion, Petitioner asks the Court to amend Dockets.Justia.com 1 the operative habeas petition to include two new grounds for relief he has argued in 2 his Objections: (1) that witness Sara Chavez testified falsely; and (2) that witness 3 Vladimir Levicky testified falsely. There is no showing that either claim has been 4 exhausted in the state courts, nor has any adequate explanation been presented for 5 Petitioner’s failure to do so or for his delay in waiting to raise these new claims until 6 after briefing was completed and the Report had issued. To the extent that 7 Petitioner seeks to have the Court consider these newly-asserted matters as extant 8 bases for federal habeas relief, the Court exercises its discretion to decline to 9 consider any such belatedly-raised habeas claims. That said, the Court has carefully 10 considered all of the arguments raised in the Objections to the Report. 11 Having completed its review, the Court accepts the findings and 12 recommendations set forth in the Report. Accordingly, IT IS ORDERED that: the 13 Petition is DENIED; the Motion is DENIED; and Judgment shall be entered 14 dismissing this action with prejudice. 15 16 17 18 DATE: February 8, 2023 __________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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