Joshua Scott Lovett v. Stu Sherman

Filing 19

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Valerie Baker Fairbank for Report and Recommendation (Issued) 11 . (ib)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10

JOSHUA SCOTT LOVETT,

11

Petitioner,

12
13

v.
STU SHERMAN, Warden,

Case No. ED CV 16-02517 VBF (AFM)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Respondent.

14
15
16
17

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records

18

on file, and the Report and Recommendation of the United States Magistrate Judge.

19

Further, the Court has engaged in a de novo review of those portions of the Report

20

to which objections have been made.

21

Petitioner’s objections reflect a misunderstanding of the limited nature of

22

federal habeas review. First, he requests appointment of counsel for purposes of

23

this proceeding. (Objections at 1.) Appointment of counsel would be inappropriate

24

in this case because petitioner has not shown a likelihood of success on the merits

25

or an inability to articulate his claims pro se in light of the complexity of the legal

26

issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per

27

curiam).

28

1

Second, petitioner contends that the Court should have held an evidentiary

2

hearing on his claims to revisit the credibility of the witnesses. (Objections at 2.)

3

An evidentiary hearing would have been inappropriate because petitioner did not

4

meet his burden under 28 U.S.C. § 2254(d) of showing that the state court’s

5

decision resulted in a decision that was contrary to, or involved an unreasonable

6

application of, clearly established federal law; or resulted in a decision that was

7

based on an unreasonable determination of the facts. See Cullen v. Pinholster, 563

8

U.S. 170, 181-85 (2011). In any event, the credibility of the witnesses was not

9

central to any of petitioner’s three claims, which were (1) error in the admission of

10

evidence, (2) Eighth Amendment error, and (3) instructional error.

11

Third, petitioner claims that he was not guilty by reason of his mental and

12

physical defects. (Objections at 3-4.) This claim is surfacing for the first time in

13

petitioner’s Objections to the Report and Recommendation.

14

unexhausted, unsupported by any competent evidence, and unrelated to any of

15

petitioner’s original three claims. Petitioner had the ability to exhaust and raise this

16

claim before his federal habeas proceeding ever began. Under these circumstances,

17

the Court declines to consider it. See United States v. Howell, 231 F.3d 615, 623

18

(9th Cir. 2000) (district court may decline to consider factual allegations raised for

19

the first time in objections to a magistrate judge’s report and recommendation

20

where the specific allegations were available before the magistrate’s proceedings

21

ever began); Greenhow v. Secretary of Health & Human Services, 863 F.2d 633,

22

638 (9th Cir. 1988) (“[A]llowing parties to litigate fully their case before the

23

magistrate and, if unsuccessful, to change their strategy and present a different

24

theory to the district court would frustrate the purposes of the Magistrates Act. We

25

do not believe that the Magistrate Act was intended to give litigants an opportunity

26

to run one version of their case past the magistrate, then another past the district

27

court.”), overruled on other ground by United States v. Hardesty, 977 F.2d 1347,

28
2

Moreover, it is

1

1348 (9th Cir. 1992).

2

In sum, petitioner’s objections are overruled.

3

The Court accepts the findings and recommendations of the Magistrate

4

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

5

is accepted and adopted; and (2) Judgment shall be entered denying the Petition and

6

dismissing this action with prejudice.

7
8

DATED: June 21, 2017

9
10
11

VALERIE BAKER FAIRBANK
SENIOR U.S. DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3