Darnell J. Thomas v. M. L. Montgomery
ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge George H. Wu for Report and Recommendation (Issued) 52 (ib)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
DARNELL J. THOMAS,
Case No. CV 14-04288 GW (AFM)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended
Petition, the records on file, and the Report and Recommendation of the United
States Magistrate Judge. Further, the Court has engaged in a de novo review of
those portions of the Report to which objections have been made.
Petitioner has raised three new claims for the first time in the Objections. He
claims that (1) the evidence was insufficient to support the gang enhancement
[Objections at 5, 7]; (2) trial counsel was ineffective for failing to object to the
testimony of the gang expert [Objections at 12]; and (3) trial counsel was
ineffective for failing to subpoena an eyewitness who would have admitted that he,
not petitioner, committed the crime [Objections at 12-13]. Petitioner failed to raise
these claims earlier when he had the opportunity to do so, and it is inappropriate to
raise them for the first time at the objection stage. The Court therefore will not
consider them. See United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000)
(district court may decline to consider factual allegations raised for the first time in
objections to a magistrate judge’s report and recommendation where the specific
allegations were available before the magistrate’s proceedings ever began);
Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 638 (9th Cir.
1988) (“[A]llowing parties to litigate fully their case before the magistrate and, if
unsuccessful, to change their strategy and present a different theory to the district
court would frustrate the purposes of the Magistrates Act. We do not believe that
the Magistrate Act was intended to give litigants an opportunity to run one version
of their case past the magistrate, then another past the district court.”), overruled on
other ground by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
The Court accepts the findings and recommendations of the Magistrate
Judge. IT THEREFORE IS ORDERED that (1) the Report and Recommendation
is accepted and adopted; (2) petitioner’s request for an evidentiary hearing is
denied; and (3) Judgment shall be entered denying the Second Amended Petition
and dismissing this action with prejudice.
DATED: June 30, 2017
GEORGE H. WU
UNITED STATES DISTRICT JUDGE
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