UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 30, 2012
JASON SCOTT KIRKLEY,
RAUL LOPEZ, WARDEN,
The opinion of the court was delivered by: Margaret M. Morrow 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"), Petitioner's Objections to the Report, and Petitioner's "Supplement" filed on November 15, 2012. The Court has conducted a de novo review of those matters to which objections have been stated in writing.
Petitioner has appended to the "Supplement" several pages from an Augmented Reporter's Transcript of an in camera hearing held on August 3, 2007. Petitioner labels this transcript "newly discovered evidence, because he did not possess it until recently.
A district court has discretion, but is not required, to consider evidence 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 transcript appended to the Supplement. Having done so, and having completed its review, the Court accepts the findings and recommendations set forth in the Report.
IT IS ORDERED that: (1) the Petition is denied; 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.
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