The opinion of the court was delivered by: Christina A. Snyder 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 R&R filed on April 8 and 9, 2010,*fn1 and the records and files.*fn2 Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge. Petitioner's objections are overruled.
"[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation." United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). "[I]n making a decision on whether to consider newly offered evidence, the district court must actually exercise its discretion, rather than summarily accepting or denying the motion." Id. at 622; see also Espinoza-Matthews v. California, 432 F.3d 1021, 1026 n.4 (9th Cir. 2005).
Petitioner argues that "NEW exculpatory evidence . . . first presented by Petitioner at this time" shows that the Long Beach Police Department ("LBPD") fabricated "critical and dispositive . . . evidence." (Objections at 57, 399.) Petitioner attaches a letter dated July 12, 2006, from Lyle Sardie, the owner of the Mariposa Restaurant, where Petitioner was drinking on the night of the crime, to Petitioner. (Objections, Ex. 36-B.) Sardie states that the police searched Mariposa's records "immediately after the accident to try and find out exactly what you had to drink at Mariposa on the night of the accident." Sardie states that he told the police Petitioner was "in the restaurant for a short period of time and I was under the impression that you only had one drink that night because you weren't there for long, and you usually drank beer."*fn3 Sardie states that when Petitioner left the restaurant, he "looked fine to me at the time." Sardie states that the "police seem to go out of their way to try and tie Mariposa to the accident. A few days later one of the police officers on the street told me that 'We don't have to worry about any lawsuits from your friend anymore' and he just laughed about it." Finally, Sardie stated that although he was told by his attorney not to talk to Petitioner, "I have always wanted to know what really happen [sic] that night, and where you went when you left Mariposa. Also, could you give me the name of your attorney at that time?" (Id.)
Petitioner states he does not know Sardie and had no communication with him before receiving the letter. (Objections at 58.) Petitioner states that the reason he did not seek to introduce this letter before now was because he intended to do so at the evidentiary hearing "which Petitioner fully and completely expected to be certainly ordered, scheduled and held." (Id. at 57.)
In exercising its discretion, the Court declines to consider the new evidence. Upon receipt of the letter in 2006, Petitioner could have sought leave to expand the record. See Rule 7 of the Rules Governing Section 2254 Cases. Petitioner's legally unsupported expectation is not an excuse for failing to raise the letter earlier. Even if the Court were to consider the letter, Petitioner's arguments about the letter's meaning are meritless. Petitioner highlights the following portion of Sardie's letter: "A few days later one of the police officers on the street told me that 'We don't have to worry about any lawsuits from your friend anymore' and he just laughed about it. [¶] It kind of scared the hell out of me at the time because I could not understand why you were running from the police." (Objections at 62-63 (quoting Ex. 36-B).) Petitioner concludes from those statements that the LBPD fabricated evidence. However, Petitioner offers no logical connection between Sardie's statements and Petitioner's conclusion.
2. Complaints to the LBPD
Petitioner also alleges that in the period between January and June of 2001, he sent "several serious police complaint letters to Long Beach Police Department Chief Jerome Lance . . . concerning a number of repeated and continuing improper and unlawful vehicle traffic stops of Petitioner's three (3) high-profile custom show-car vehicles." (Objections at 63 (emphases in original).) Petitioner further alleges that in those letters he threatened lawsuits against the LBPD. (Id.) Petitioner does not attach copies of the letters. Rather, he states they are "on file with the Long Beach Police Department as direct evidence in this case." (Id. at 64 (emphases in original).)
In exercising its discretion, the Court declines to consider this new evidence. Petitioner offers no reason why he failed to refer to these letters in the several years his petition has been pending in federal court.
Moreover, the "AEDPA constrains when the district court may hold an evidentiary hearing or expand the record pursuant to Rule 7 of the Rules Governing § 2254 cases if a state prisoner seeking federal habeas relief has failed to develop the factual record that supports a claim in state court. Section 2254(e)(2) only allows new evidence to be considered in the federal proceeding if, among other requirements, the factual predicate 'could not have been previously discovered through the exercise of due diligence.' '[A] failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.'" Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (citation and footnote omitted); 28 U.S.C. § 2254(e)(2)(A). "[A] petitioner who 'knew of the existence of information' at the time of his state court proceedings, but did not present it until federal habeas proceedings, 'failed to develop the factual basis for his claim diligently.'" Rhoades, 598 F.3d at 517 (citation omitted). Here, at the time of the state court proceedings, Wohl clearly knew of the letters he had written, yet failed to present them in the state habeas proceedings. Accordingly, the letters cannot be considered on federal habeas review. Id. at 518.
In his Objections, Petitioner raises a new, unexhausted ground not set forth in the Petition. In conjunction with his allegation that he sent letters to LBPD Chief Lance about allegedly improper traffic stops before his arrest (see Section A.2 above), Petitioner alleges his trial counsel was ineffective for failing to obtain copies of the letters and present them in Petitioner's defense at trial. (Objections at 413.) Petitioner asserts his counsel was "fully, ...