The opinion of the court was delivered by: Valerie Baker Fairbank United 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 ("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.
Petitioner had appended to his Objections a proposed civil rights complaint, by which he purports to sue the state trial court in which he was convicted, pursuant to 42 U.S.C. § 1983, on the ground that his arrest violated the Fourth Amendment. Petitioner states he intends to seek civil rights relief "in" and "through" this habeas case.
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). Section 1983 civil rights claims cannot be litigated within a federal habeas action, and in any event, the proposed civil rights complaint cannot be filed, because plaintiff has not complied with the requirements of 28 U.S.C. § 1915(a)(2). In addition, it is readily apparent that, even if plaintiff had properly submitted his civil rights complaint, his desire to challenge his arrest (and, thus, his conviction) through a federal civil rights claim would be barred by Heck v. Humphrey, 512 U.S. 477, 487-87, 114 S. Ct. 2364, 2372 (1994). Accordingly, the Court exercises its discretion and declines to consider the proposed civil rights complaint appended to the Objections.
Having completed its review, the Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) the Petition is denied; and (2) Judgment shall be entered dismissing this action with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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