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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARTURO FRANCO PALOMAR, JR., 12 13 14 15 16 Petitioner, v. RON BARNES, WARDEN, Respondent. ) ) ) ) ) ) ) ) ) ) NO. CV 12-4755-GHK (MAN) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas 19 Corpus (“Petition”), all of the records herein, the Report and Recommendation of United States 20 Magistrate Judge (“Report”), and Petitioner’s Objections to the Report. Pursuant to 28 U.S.C. § 21 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those 22 portions of the Report to which objections have been stated. 23 24 Petitioner’s Objections do not address the substance of the Report. Rather, in his 25 Objections, Petitioner raises numerous new habeas claims, including claims that: the evidence 26 was insufficient to establish the elements, including intent to kill and premeditation, of the crimes 27 of which Petitioner was convicted; improper propensity evidence was admitted; the testimony of 28 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 1 a limiting instruction to the jury; and Petitioner is entitled to relief based on cumulative error. 2 Each of these claims is based upon the trial record and longstanding law; none of them relies 3 upon newly discovery evidence or a change in the law. Moreover, none of these claims was 4 raised by Petitioner in the state courts, and the claims therefore are unexhausted, and none of 5 these claims was alleged in the Petition.1 6 7 A district court has discretion, but is not required, to consider evidence or arguments 8 presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279 9 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). 10 The Court declines to consider the plethora of unexhausted habeas claims raised by Petitioner for 11 the first time in his Objections to the Report. 12 13 The Court accepts the findings and recommendations set forth in the Report. Accordingly, 14 IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing 15 this action with prejudice. 16 17 DATED: 9/25/14 . 18 GEORGE H. KING UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 1 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. 2

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