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Manuel L. Bojorquez v. Warden Randy Grounds

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 18, 2011

MANUEL L. BOJORQUEZ,
PETITIONER,
v.
WARDEN RANDY GROUNDS, RESPONDENT.

The opinion of the court was delivered by: John A. Kronstadt 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 has raised new factual allegations and attached documents that were not included with the Petition. 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 has exercised its discretion to consider the additional allegations and exhibits presented in and with the Objections. Having done so, the Court accepts the findings and recommendations set forth in the Report.

Petitioner complains that the Magistrate Judge erred in concluding that Ground One of the Petition is unexhausted based on the sworn allegations of the Petition, which indicate that Ground One is unexhausted. Petitioner asserts that his allegations in the Petition were mistaken and that, in fact, he fairly presented Ground One to all three state courts. Even assuming, arguendo, that Ground One may be exhausted, the claim nonetheless must be denied for the reasons set forth in the Report at pages 6-7, because it is not cognizable on federal habeas review. Petitioner's remaining new allegations and documents also do not establish any error 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.

20110718

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