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David Jerrial Henderson v. Terri Gonzalez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 6, 2011

DAVID JERRIAL HENDERSON,
PETITIONER,
v.
TERRI GONZALEZ,
RESPONDENT.

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

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus, 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 Petitioner's Objections contain attached exhibits. With one exception (Exhibit F, a military discharge form dated May 26, 2011), the exhibits to the Objections were a part of the record in this case prior to the issuance of the Report. With respect to Exhibit F, 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 to consider Exhibit F appended to Petitioner's Objections. Having done so, the Court concludes that this new evidence does not affect the correctness of the Report's conclusions.

The Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) Respondent's Motion to Dismiss is granted and the Petition is dismissed as untimely; and (2) Judgment shall be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on the parties.

LET JUDGMENT BE ENTERED ACCORDINGLY.

20111006

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