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Aaron A. Lozada v. K. Allison

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 5, 2012

AARON A. LOZADA, PETITIONER,
v.
K. ALLISON, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Valerie Baker Fairbank United States District Judge

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and Report and Recommendation of the United States Magistrate Judge. On October 1, 2012, Petitioner filed Objections to the Report and Recommendation. For the most part, Petitioner argues an entirely different claim in his objections, i.e., that a note from the jury demonstrated that the jury found petitioner guilty on an incorrect legal theory. (Objections at 1-5.) This new claim was not raised before the California Supreme Court and, thus, is unexhausted.

The Court declines to address this new claim for two reasons. First, Objections to a Report and Recommendation are not the appropriate vehicle for raising a new habeas claim. Cf. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (declining to consider claim raised for first time in traverse). Second, the claim is unexhausted, and therefore this Court may not consider it. See 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 518--19, 102 S. Ct. 1198, 1203--04, 71 L. Ed. 2d 379 (1982).

Accordingly, having reviewed de novo those portions of the record to which objections have been made, the Court accepts the findings of fact, conclusions of law, and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that judgment be entered dismissing the Petition on the merits with prejudice.

20121005

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