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D'Apice v. Woodring

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


February 12, 2009

ROBERT D'APICE, PETITIONER,
v.
JOSEPH WOODRING, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition, the Magistrate Judge's Report and Recommendation, the Objections to the Report and Recommendation, and all records in the file. Having made a de novo determination, the Court agrees with the recommendation of the Magistrate Judge.

Ground Two of the Petition requested that this Court find that 28 C.F.R. § 570.21 is invalid. (Petition at 3 & Attachment.) As stated in the Report and Recommendation, § 570.21 has been rescinded by the Bureau of Prisons. (Report and Recommendation at 6-7.)

In his Objections, Petitioner raises a new ground for relief, based on implementation of the Second Chance Act, which was not set forth in his original petition. The Court will not consider it. See Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) ("[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act."), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam), cert. denied, 507 U.S. 978 (1993); see also Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("A Traverse is not the proper pleading to raise additional grounds for relief."), cert. denied, 514 U.S. 1026 (1995).

In Respondent's Response to the Report and Recommendation, Respondent requests an opportunity to brief the merits of Ground One. Respondent's request is referred to the Magistrate Judge. (See Order Requiring Response to Petition, Dkt. No. 3, ¶ 5.)

IT IS ORDERED that the Magistrate Judge's Report and Recommendation is approved and adopted.

IT IS FURTHER ORDERED that:

1. Respondent's motion to dismiss Ground One of the Petition is denied.

2. Respondent's motion to dismiss Ground Two of the Petition is granted.

3. Ground Two of the Petition is dismissed without prejudice.

20090212

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