Opinion
2:21-CV-06696-RSWL-DFM
08-18-2022
GAGIK AKOPYAN, Petitioner, v. BRIAN KIBLER, Respondent.
ORDER ACCEPTING FINDINGS RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE[21] AND JUDGMENT
HONORABLE RONALD S.W. LEW SENIOR U.S. DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus (“Petition”) [1], records on file herein, and the Report and Recommendation of the United States Magistrate Judge [21]. Further, as required by Federal Rule of Civil Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the Report and Recommendation to which Petitioner specifically has objected [22].
Petitioner argues for the first time in his Objections that he has shown good cause for a Rhines stay due to ineffective assistance of his postconviction counsel. A district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a report and recommendation. See United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000); see also Blunk v. Ryan, 728 Fed.Appx. 736, 737 (9th Cir. 2018). The Court therefore declines to consider Petitioner's ineffective assistance of counsel argument.
Petitioner's remaining objections lack merit for the reasons stated in the Report and Recommendation. Having considered the Petition, Respondent's Motion to Dismiss (“Motion”) [8], the papers filed pursuant to the Motion [18, 19], and Petitioner's Objections to the Report and Recommendation, the Court finds no defect of law, fact, or logic in the Report and Recommendation. To be clear, Petitioner has not exhausted his state court remedies for the Petition to be properly presented before this Court. See, e.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). Nor has Petitioner shown good cause for this Court to grant a Rhines stay. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
Accordingly, IT IS ORDERED THAT:
1. Petitioner's objections are overruled; and
2.The Report and Recommendation of the Magistrate Judge is accepted; and
3.Judgment is entered denying the Petition and dismissing this Action without prejudice.