Darnell J. Thomas v. M. L. Montgomery

Filing 59

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge George H. Wu for Report and Recommendation (Issued) 52 (ib)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DARNELL J. THOMAS, Petitioner, 11 12 13 14 v. M.L. MONTGOMERY, Case No. CV 14-04288 GW (AFM) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 15 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended 18 Petition, the records on file, and the Report and Recommendation of the United 19 States Magistrate Judge. Further, the Court has engaged in a de novo review of 20 those portions of the Report to which objections have been made. 21 Petitioner has raised three new claims for the first time in the Objections. He 22 claims that (1) the evidence was insufficient to support the gang enhancement 23 [Objections at 5, 7]; (2) trial counsel was ineffective for failing to object to the 24 testimony of the gang expert [Objections at 12]; and (3) trial counsel was 25 ineffective for failing to subpoena an eyewitness who would have admitted that he, 26 not petitioner, committed the crime [Objections at 12-13]. Petitioner failed to raise 27 these claims earlier when he had the opportunity to do so, and it is inappropriate to 28 1 raise them for the first time at the objection stage. The Court therefore will not 2 consider them. See United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000) 3 (district court may decline to consider factual allegations raised for the first time in 4 objections to a magistrate judge’s report and recommendation where the specific 5 allegations were available before the magistrate’s proceedings ever began); 6 Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 638 (9th Cir. 7 1988) (“[A]llowing parties to litigate fully their case before the magistrate and, if 8 unsuccessful, to change their strategy and present a different theory to the district 9 court would frustrate the purposes of the Magistrates Act. We do not believe that 10 the Magistrate Act was intended to give litigants an opportunity to run one version 11 of their case past the magistrate, then another past the district court.”), overruled on 12 other ground by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992). 13 The Court accepts the findings and recommendations of the Magistrate 14 Judge. IT THEREFORE IS ORDERED that (1) the Report and Recommendation 15 is accepted and adopted; (2) petitioner’s request for an evidentiary hearing is 16 denied; and (3) Judgment shall be entered denying the Second Amended Petition 17 and dismissing this action with prejudice. 18 19 DATED: June 30, 2017 20 21 22 23 ____________________________________ GEORGE H. WU UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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