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Navarro v. Adams

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


October 30, 2009

LISANDRO NAVARRO, PETITIONER,
v.
DARREL ADAMS, 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 (R&R), 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.

Petitioner's Objections appear to raise a new ground for relief based on insufficiency of the evidence as to great bodily injury. (Objections at 9 ("Petitioner contends that the evidence and the finding by the Jury that great bodily injury resulted "IN THE COMMISSION" of the sex acts is not supported by the law and evidence.").) Raising a new ground for relief in Objections is improper. 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).

Petitioner's new ground for relief is unexhausted because it was not presented to the California Supreme Court. (See Ex. C to Respondent's Motion to Dismiss.) An unexhausted ground cannot support federal habeas relief.*fn1 28 U.S.C. § 2254(b)(1).

IT IS ORDERED that the Report and Recommendation is adopted, and that Judgment be entered denying the Petition and dismissing this action with prejudice.

IT IS FURTHER ORDERED that Petitioner's request for appointment of counsel is DENIED.


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