Carlos Cumplido v. M McDonald

Filing 48

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 39 by Judge Dale S. Fischer. (adu)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 CARLOS CUMPLIDO, Petitioner, 14 vs. 15 FRED FOULK, Acting Warden, 16 Respondent. 17 18 ) ) ) ) ) ) ) ) ) ) Case No. CV 12-3071-DSF (DTB) ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 19 records on file herein, and the Report and Recommendation of the United States 20 Magistrate Judge. Further, the Court has engaged in a de novo review of those 21 portions of the Report and Recommendation to which objections have been made. 1 22 23 24 25 26 27 28 1 To the extent petitioner raises new claims in his Objections (see Objections at 18-19, 27-28) and provides additional evidence, the Court exercises its discretion not to consider such. See Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). While the Court recognizes petitioner’s pro se status, it also considers that petitioner has had ample opportunity to present these claims and evidence, but failed to do so. Further, these (continued...) 1 1 The Court accepts the findings and recommendations of the Magistrate Judge. 2 IT THEREFORE IS ORDERED that Judgment be entered denying the Petition 3 and dismissing this action with prejudice. 4 2/4/14 5 DATED: 6 DALE S. FISCHER UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 (...continued) 25 claims are neither “novel” nor do they rely on recent changes in the law. See Brown, 26 279 F.3d at 745 (finding that the district court abused its discretion by failing to consider pro se petitioner’s “relatively novel claim under a relatively new statute.”). 27 Finally, it appears that petitioner has failed to exhaust his state court remedies with 28 respect to his new claims. See 28 U.S.C. § 2254(b). 2

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