UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
May 25, 2010
RODERICK HIMES, PETITIONER,
KENNETH CLARK, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Philip S. Gutierrez United States District Judge
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, and the Report and Recommendation of United States Magistrate Judge and has considered de novo the portions of the Report as to which objections have been filed. In his objections, Petitioner has attached a May 5, 2010 declaration by his former attorney, as well as his own declaration signed May 16, 2010, which Petitioner argues bolster his claim of a Brady violation. (See Objections, Exhs. A and C.) The Court does not consider new arguments and supplemental evidence presented for the first time in a party's objections to a report and recommendation, particularly where, as here, the evidence could have been presented earlier. See Espinoza-Matthews v. California, 432 F.3d 1021, 1026 n.4 (9th Cir. 2005) (finding district courts are not required to consider new evidence submitted with objections to a magistrate judge's report and recommendation). Nevertheless, even were the Court to consider the declarations, they would not change the Court's conclusion that Petitioner's constitutional rights were not violated by the prosecution's failure to disclose at an earlier date that the victim had identified the wrong person in a six-pack, which Petitioner now claims caused him to participate in a live line-up that he would not have called for had he known. As the appellate court pointed out, the prosecutor would have requested the line-up anyway, and Petitioner could not have stopped it. Accordingly, the Court accepts the Magistrate Judge's Report and adopts it as its own findings and conclusions.
Further, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right and, therefore, a certificate of appealability will not issue in this action. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
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