Larry Allen Graves v. Kim Holland

Filing 21

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge R. Gary Klausner for Report and Recommendation (Issued) 19 . IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LARRY ALLEN GRAVES,

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Case No. CV 16-05137-RGK (GJS)

Petitioner
v.
KIM HOLLAND, Warden,

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 Petition (“Petition”) and

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all pleadings, motions, and other documents filed in this action, the Report and

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Recommendation of United States Magistrate Judge (“Report”), and Petitioner’s

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Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P.

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72(b), the Court has conducted a de novo review of those portions of the Report to

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which objections have been stated.

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Petitioner asserts that the Magistrate Judge erred by misconstruing his two

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habeas claims. A review of the means by which Petitioner exhausted his claims (his

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California Supreme Court habeas petition) and the allegations of the Petition, as

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well as of the Report itself, belies Petitioner’s assertion. In particular, at page 13 of

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the Report, the Magistrate Judge outlined the evidence she found sufficient to show

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that Petitioner “intended to and did use” the knife at issue and about which the

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victims testified. Given the Report’s conclusion (p. 13) that “there was more than

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sufficient evidence from which the jury could infer that Petitioner used a dangerous

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weapon during the commission of the rapes,” there is no fair reading of the Report

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that could support Petitioner’s contention that the Report failed to address his

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“possession” of the knife.

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As the Report noted (p. 16 n.4), Petitioner’s belated attempt to raise a

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Confrontation Clause claim in his Reply was inappropriate and, in any event, futile,

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as the claim would have failed on its face if considered. In his Objections,

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Petitioner asserts that he is entitled to pursue the claim here, because he raised it in

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one of his two trial court habeas petitions. Whether or not he did, presenting the

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claim to the trial court did not exhaust it. Petitioner’s Confrontation Clause

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objection lacks merit.

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Finally, the bulk of the Objections are devoted to raising two new claims – one

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relying on a Supreme Court and various Circuit Court decisions with respect to the

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concept of “possession” for purposes of federal crimes, and the other asserting that

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trial counsel performed ineffectively by failing to question Detective Tarjamo

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“about the allegations or any attempts the police made to try and locate the alleged

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weapon.” A district court has discretion, but is not required, to consider evidence or

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arguments presented for the first time in objections to a report and recommendation.

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See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell,

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231 F.3d 615, 621-22 (9th Cir. 2000). The Court exercises its discretion not to

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consider these newly-proffered claims, but notes that Petitioner’s argument based on

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decisions construing federal criminal statutes are of no moment here, in a case

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involving a conviction for violation of state law.

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Having completed its review, the Court concludes that nothing set forth in the

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Objections affects or alters, or calls into question, the analysis and conclusions set

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forth in the Report. The Court accepts the findings and recommendations set forth
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in the Report. Accordingly, IT IS ORDERED that: (1) the Petition is DENIED;

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and (2) Judgment shall be entered dismissing this action with prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATE: March 13, 2018

__________________________________
R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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