Opinion
Case No. CV 13-4883- ODW (MRW)
10-22-2015
DINO DESHAWN PHILLIPS, Petitioner, v. G.J. JANDA, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court reviewed de novo the moving papers, Magistrate Judge Wilner's Report and Recommendation regarding the denial of a Rhines stay, and Petitioner's objections to the Report. (Docket # 21, 22, 49, 58.) The Court accepts the findings and recommendation of the Magistrate Judge and affirms the previous decision to deny the Rhines stay in this action.
In his objections, Petitioner asserts new arguments regarding his delay in filing his state habeas actions (described below) that he did not present in his original stay request or in response to the Court's previous instructions. (Docket # 14, 21.) A federal court has the discretion not to consider arguments or evidence "presented for the first time in a party's objection to a magistrate judge's recommendation." United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). However, depending upon the circumstances, it may be an abuse of discretion to refuse to consider a new argument made by a pro se prisoner in a habeas action. Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002).
In the present case, the Court determines it is appropriate to consider, but reject, Petitioner's new arguments here. In particular, Petitioner now offers unsubstantiated claims about his access to trial transcripts that he failed to assert in support of his Rhines request in early 2014. (Docket # 58 at 4-6.) Even considering the latest, unsupported statement offered long after his Rhines request, Petitioner fails to convincingly demonstrate "good cause" for his failure to have exhausted his claims in a timely manner on direct appeal or in his pre-federal-filing round of habeas review. The Court finds no error in the Magistrate Judge's evaluation of the stay request.
IT IS ORDERED that the matter be referred back to Magistrate Judge Wilner for further proceedings. DATE: October 22, 2015
/s/_________
HON. OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE