Opinion
Case No. CV 10-03202 GW (AN)
08-29-2011
WILLIAM JOSEPH, Petitioner, v. KEN CLARK, Warden, Respondent.
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the court has reviewed the file, including the Magistrate Judge's Report and Recommendation ("R&R") and Petitioner's Objections thereto, de novo. IT IS ORDERED that:
1. The Objections are overruled and the R&R is approved and adopted because none of the arguments raised in the Objections refute the findings and conclusions set forth in the R&R. Further, to the extent the Objections make a belated attempt to raise any new claims that were not raised in the Second Amended Petition, the court will not consider such claims. See Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633,638-39 (9th Cir. 1988) ("[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act."), overruled on other grounds by United States v, Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam), cert, denied, 507 U.S. 978, 113 S. Ct. 1429 (1993); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("A Traverse is not the proper pleading to raise additional grounds for relief."), cert, denied, 514 U.S. 1026, 115 S. Ct. 1378 (1995).
2. Judgment shall be entered denying die Second Amended Petition and dismissing this action with prejudice.
3. All motions are denied as moot and terminated.
IT IS FURTHER ORDERED that the clerk of the court shall serve a copy of this Order and the Judgment on all counsel or parties of record.
GEORGE H. WU
UNITED STATES DISTRICT JUDGE