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Robert Ray Newman v. A. Hedgpeth

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 7, 2011

ROBERT RAY NEWMAN,
PETITIONER,
v.
A. HEDGPETH,
RESPONDENT.

The opinion of the court was delivered by: S. James Otero United States District Judge

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition", all of the records herein, the Report and Recommendation of United States Magistrate Judge ("Report"), and Petitioner's Objections to the Report. The Court has conducted a de novo review of those portions of the Report to which objections have been stated in writing.

The Court notes that, in his Objections, Petitioner attempts to raise various new habeas claims based on assertions that: his original trial counsel committed ineffective assistance by failing to present "mental defenses" and favorable evidence and to object to prosecutorial misconduct; his subsequent trial counsel provided ineffective assistance by advising Petitioner not to testify at trial; the prosecution witnesses lied, and the prosecutor committed misconduct by presenting their perjured testimony; and Petitioner was "framed." These newly-asserted claims were not alleged in the Petition, and they are unexhausted.

A district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). The Court exercises its discretion and declines to consider the unexhausted, newly-raised habeas claims set forth in the Objections.

Having completed its review, the Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that federal habeas relief is denied and Judgment shall be entered dismissing this action with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

20110707

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