Opinion
Case No. EDCV 13-1185-DSF (JEM)
02-24-2014
ALAN JAMES MIRACLE, Petitioner, v. DANIEL PARAMO, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
On November 18, 2013, the United States Magistrate Judge issued a Report and Recommendation, recommending that Petitioner's Petition for Writ of Habeas Corpus ("Petition") be denied and the action dismissed with prejudice. Thereafter, on December 30, 2013, Petitioner filed Objections to the Report and Recommendation ("Objections").
To the extent Petitioner's Objections raise new claims that were not included in the Petition, (see Objections at 1-3), the 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. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002), cert. denied, 546 U.S. 1019 (2005); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001). Although Petitioner is pro se, he nevertheless had the opportunity to include these allegations at an earlier time, but failed to do so.
To the extent Petitioner's Objections challenge the Magistrate Judge's findings and recommendations concerning the instructional error claim set forth in the Petition, Petitioner's contentions are without merit and warrant no comment.
Based on the foregoing and pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition, the records on file, and the Report and Recommendation of the United States Magistrate Judge. The Court accepts the findings and recommendations of the Magistrate Judge. Accordingly, IT IS HEREBY ORDERED that: (1) the Petition for Writ of Habeas Corpus is denied; and (2) Judgment shall be entered dismissing the action with prejudice.
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DALE S. FISCHER
UNITED STATES DISTRICT JUDGE