Arturo Franco Palomar v. Ron Barnes

Filing 34

ORDER ACCEPTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge George H. King for Report and Recommendation (Issued), 28 . (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ARTURO FRANCO PALOMAR, JR.,

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Petitioner,
v.
RON BARNES, WARDEN,
Respondent.

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NO. CV 12-4755-GHK (MAN)

ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas

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Corpus (“Petition”), all of the records herein, the Report and Recommendation of United States

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Magistrate Judge (“Report”), and Petitioner’s Objections to the Report. Pursuant to 28 U.S.C. §

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636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those

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portions of the Report to which objections have been stated.

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Petitioner’s Objections do not address the substance of the Report.

Rather, in his

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Objections, Petitioner raises numerous new habeas claims, including claims that: the evidence

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was insufficient to establish the elements, including intent to kill and premeditation, of the crimes

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of which Petitioner was convicted; improper propensity evidence was admitted; the testimony of

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a gang expert was improper hearsay and inflammatory; the gang expert’s testimony violated
Petitioner’s rights to due process and a fair trial, especially because the trial court failed to give

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a limiting instruction to the jury; and Petitioner is entitled to relief based on cumulative error.

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Each of these claims is based upon the trial record and longstanding law; none of them relies

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upon newly discovery evidence or a change in the law. Moreover, none of these claims was

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raised by Petitioner in the state courts, and the claims therefore are unexhausted, and none of

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these claims was alleged in the Petition.1

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A district court has discretion, but is not required, to consider evidence or arguments

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presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279

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F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000).

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The Court declines to consider the plethora of unexhausted habeas claims raised by Petitioner for

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the first time in his Objections to the Report.

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The Court accepts the findings and recommendations set forth in the Report. Accordingly,

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IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing

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this action with prejudice.

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DATED:

9/25/14

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GEORGE H. KING
UNITED STATES DISTRICT JUDGE

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Early in this case, Petitioner voluntarily dismissed two unexhausted claims previously
alleged in the Petition as Grounds One and Four. [Docket No. 12.] The new claims alleged in the
Objections do not include the two claims Petitioner voluntarily dismissed in this action.
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