David Kent Fitch v. Calvin Johnson

Filing 18

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge David O. Carter for Report and Recommendation (Issued), 15 (sbu)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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DAVID KENT FITCH,

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Petitioner,
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v.
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CALVIN JOHNSON,
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Respondent.
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_________________________________ )

NO. EDCV 16-1227-DOC (KS)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition for

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Writ of Habeas Corpus (“Petition”), all of the records herein, the Report and

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

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the Magistrate Judge’s Report and Recommendation (“Objections”). Pursuant to 28 U.S.C. §

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636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those

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portions of the Report to which objections have been stated.

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In the Objections, Petitioner presents a new claim concerning the speed with which the

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government prosecuted this case. Respondent received no prior notice of Petitioner’s novel

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claim, the claim has not been briefed, and, further, the claim may not be timely. Accordingly,

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the Court exercises its discretion not to consider arguments presented for the first time in

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objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir.

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2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000).

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Having completed its review, the Court accepts the findings and recommendations set

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forth in the Report. Therefore, IT IS ORDERED that: (1) the Petition is DENIED; and (2)

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Judgment shall be entered dismissing this action with prejudice.

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DATED: April 25, 2017
________________________________
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE