Summary
refusing to consider unexhausted ineffective assistance claim suggested by petitioner through his objections; distinguishing a section 2254 case before court from a first collateral attack in a section 2255 case
Summary of this case from White v. KellerOpinion
Case No. ED CV 11-525-MWF (SP)
09-28-2012
MARTIN GONZALEZ, Petitioner, v. DOMINGO URIBE, Jr., Warden, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which petitioner has objected.
The Court has also noted that, in his objections, petitioner attempts to raise a new claim of ineffective assistance of counsel, citing United States v. Harfst, 168 F.3d 398 (10th Cir. 1999), as authority for raising a new claim in rejections to a report and recommendation. But in Harfst, the court was considering a criminal defendant's first collateral attack in a 28 U.S.C. § 2255 motion. Id. at 399-401. Petitioner here seeks relief from a state court conviction under 28 U.S.C. § 2254, which, inter alia, requires exhaustion of state court remedies before habeas relief may be granted by a federal court. See 28 U.S.C. § 2254(b)(1). This Court will not consider the unexhausted ineffective assistance claim suggested by petitioner through his objections.
The Court accepts the findings and recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.
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HONORABLE MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE