Opinion
Case No. 5:13-CV-289-BRO (LAL)
01-14-2016
DAVID LEE GOFFNEY, Petitioner, v. RANDY GROUNDS, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
Petitioner attempts to raise new and withdrawn claims in his Objections.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. Although Petitioner is pro se, he nevertheless had the opportunity to include these allegation at an earlier time, but failed to do so. Moreover, Petitioner's claims are not novel claims in an unsettled area of federal law. With respect to Petitioner's claim that the prosecutor presented an improper legal theory, Petitioner earlier withdrew this claim from his Petition because it is unexhausted. (CM/ECF No. 19.) As an unexhausted claim, it cannot serve as a basis for habeas relief.
See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002).
See Sossa v. Diaz, 729 F.3d 1225, 1231 (9th Cir. 2013).
See 28 U.S.C. § 2254(b)(1)(A) (a federal court will not grant habeas relief to a petitioner held in state custody unless he has exhausted the available state judicial remedies).
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. Thus, the Court declines to issue a certificate of appealability.
See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). --------
IT IS HEREBY ORDERED
Dated: January 14, 2016
/s/_________
HONORABLE BEVERLY REID O'CONNELL
UNITED STATES DISTRICT COURT JUDGE