Beltran v. Cate

Full title: ARTURO BELTRAN, Petitioner, v. MATTHEW CATE, Secretary Ca Dept. of…

Court: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date published: Mar 6, 2018

Case No. LACV 13-1624-JLS (LAL) (C.D. Cal. Mar. 6, 2018)

Opinion

Case No. LACV 13-1624-JLS (LAL)

03-06-2018

ARTURO BELTRAN, Petitioner, v. MATTHEW CATE, Secretary Ca Dept. of Corrections and Rehabilitation, Respondent.

HONORABLE JOSEPHINE L. STATON UNITED STATES DISTRICT JUDGE

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections and the remaining record, and has made a de novo determination.

Petitioner's Objections lack merit for the reasons stated in the Report and Recommendation. To the extent Petitioner attempts to raise new claims in his Objections, this Court declines to consider these belatedly-asserted allegations. 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.¹ Although Petitioner is pro se, he nevertheless had the opportunity to include all of his allegations at an earlier time, but failed to do so. Moreover, Petitioner's claims are not novel claims in an unsettled area of law.²

1 S ee Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002).

2 See Sossa v. Diaz, 729 F.3d 1225, 1231 (9th Cir. 2013).

Also, on December 1, 2017, after the filing of the Report and Recommendation, Petitioner filed a motion for an evidentiary hearing. In habeas proceedings, "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record."³ "[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing."⁴ Here, the Court finds Petitioner's claims can be resolved by reference to the state court record and, thus, an evidentiary hearing is not warranted.

3 Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998); see also Earp v. Ornoski, 431 F.3d 1158, 1173 (9th Cir. 2005).

4 Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). --------

Accordingly, IT IS ORDERED THAT:

1. Petitioner's motion for an evidentiary hearing is denied;

2. The Report and Recommendation is approved and accepted;

3. Judgment be entered denying the Petition and dismissing this action with prejudice; and

4. The Clerk serve copies of this Order on the parties.

DATED: March 6, 2018

/s/_________

HONORABLE JOSEPHINE L. STATON

UNITED STATES DISTRICT JUDGE