Opinion
No. EDCV 14-858 PSG (FFM)
03-30-2015
JOSE A. DEANDA, Petitioner, v. WARDEN, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and Report and Recommendation of the United States Magistrate Judge. On March 19, 2015, Petitioner filed Objections to the Report and Recommendation. For the most part, Petitioner argues entirely new and different claims in his objections, i.e., that counsel was ineffective for failing to interview or call any defense witnesses or, indeed, introduce any evidence in defense of the charges; that counsel was ineffective for failing to interview any prosecution witnesses; and that counsel was ineffective for failing to prepare for trial or hire an expert witness. Petitioner also argues a new claim that the jury had been tainted during the voir dire process. These new claims were not raised before the California Supreme Court and, thus, are unexhausted.
The Court declines to address these new claims for three reasons. First, an objection to a Report and Recommendation is not the appropriate vehicle for raising a new habeas claim. Cf. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (declining to consider claim raised for first time in traverse). Second, the claims are unexhausted, and therefore this Court may not consider them. See 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 518-19, 102 S. Ct. 1198, 1203-04, 71 L. Ed. 2d 379 (1982). Third, the new claims would be untimely if now added to the Petition.
Accordingly, having reviewed de novo those portions of the record to which objections have been made, the Court accepts the findings of fact, conclusions of law, and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that judgment be entered dismissing the Petition on the merits with prejudice. DATED: 3/30/15
/s/_________
PHILIP S. GUTIERREZ
United States District Judge