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)

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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

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