Opinion
Case No. EDCV 17-2446-DSF (KK)
09-13-2018
DONALD MOSLEY, Petitioner, v. KERNAN SCOTT, Director of CDCR, Respondents.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for a Writ of Habeas Corpus, the records on file, and the Report and Recommendation of the United States Magistrate Judge. The Court has engaged in de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
In his Objections, Petitioner requests an evidentiary hearing. However, in habeas proceedings, "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record." Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998); see also Earp v. Ornoski, 431 F.3d 1158, 1173 (9th Cir. 2005). "It is axiomatic that when issues can be resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise." Totten, 137 F.3d at 1176. Here, the Magistrate Judge concluded all of Petitioner's claims could be resolved by reference to the state court record. Accordingly, the Court denies Petitioner's request for an evidentiary hearing.
To the extent Petitioner's Objections can be construed as attempting to raise additional ineffective assistance of appellate counsel and confrontation clause claims, the Court declines to review these new, unexhausted claims because a petitioner is not permitted to raise new claims in objections. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
IT IS THEREFORE ORDERED that Judgment be entered (1) denying the Petition for a Writ of Habeas Corpus; and (2) dismissing this action with prejudice. Dated: September 13, 2018
/s/_________
HONORABLE DALE S. FISCHER
United States District Judge