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Martin Gonzalez v. Domingo Uribe

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


September 28, 2012

MARTIN GONZALEZ, PETITIONER,
v.
DOMINGO URIBE, JR., WARDEN, RESPONDENT.

The opinion of the court was delivered by: Honorable Michael W. Fitzgerald United States District Judge

O

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which petitioner has objected.

The Court has also noted that, in his objections, petitioner attempts to raise a new claim of ineffective assistance of counsel, citing United States v. Harfst, 168 F.3d 398 (10th Cir. 1999), as authority for raising a new claim in rejections to a report and recommendation. But in Harfst, the court was considering a criminal defendant's first collateral attack in a 28 U.S.C. § 2255 motion. Id. at 399-401. Petitioner here seeks relief from a state court conviction under 28 U.S.C. § 2254, which, inter alia, requires exhaustion of state court remedies before habeas relief may be granted by a federal court. See 28 U.S.C. § 2254(b)(1). This Court will not consider the unexhausted ineffective assistance claim suggested by petitioner through his objections.

The Court accepts the findings and recommendation of the Magistrate Judge. IT IS THEREFORE ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.

20120928

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