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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DARNELL J. THOMAS,
Petitioner,

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v.
M.L. MONTGOMERY,

Case No. CV 14-04288 GW (AFM)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Respondent.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended

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Petition, the records on file, and the Report and Recommendation of the United

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States Magistrate Judge. Further, the Court has engaged in a de novo review of

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those portions of the Report to which objections have been made.

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Petitioner has raised three new claims for the first time in the Objections. He

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claims that (1) the evidence was insufficient to support the gang enhancement

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[Objections at 5, 7]; (2) trial counsel was ineffective for failing to object to the

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testimony of the gang expert [Objections at 12]; and (3) trial counsel was

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ineffective for failing to subpoena an eyewitness who would have admitted that he,

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not petitioner, committed the crime [Objections at 12-13]. Petitioner failed to raise

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these claims earlier when he had the opportunity to do so, and it is inappropriate to

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raise them for the first time at the objection stage. The Court therefore will not

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consider them. See United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000)

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(district court may decline to consider factual allegations raised for the first time in

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objections to a magistrate judge’s report and recommendation where the specific

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allegations were available before the magistrate’s proceedings ever began);

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Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 638 (9th Cir.

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1988) (“[A]llowing parties to litigate fully their case before the magistrate and, if

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unsuccessful, to change their strategy and present a different theory to the district

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court would frustrate the purposes of the Magistrates Act. We do not believe that

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the Magistrate Act was intended to give litigants an opportunity to run one version

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of their case past the magistrate, then another past the district court.”), overruled on

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other ground by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).

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The Court accepts the findings and recommendations of the Magistrate

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Judge. IT THEREFORE IS ORDERED that (1) the Report and Recommendation

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is accepted and adopted; (2) petitioner’s request for an evidentiary hearing is

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denied; and (3) Judgment shall be entered denying the Second Amended Petition

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and dismissing this action with prejudice.

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DATED: June 30, 2017

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____________________________________
GEORGE H. WU
UNITED STATES DISTRICT JUDGE

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