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Bingham v. Montgomery

United States District Court, C.D. California, Western Division

December 22, 2014

CALEB BINGHAM, Petitioner,
v.
WARREN MONTGOMERY, Respondent.

ORDER ACCEPTING THE FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JESUS G. BERNAL, District Judge.

Pursuant to 28 U.S.C. ยง 636, the Court has reviewed the file, including the Magistrate Judge's Report and Recommendation ("R&R") and Petitioner's Objections [19]. Further, the Court has completed a de novo review of those portions of the R&R to which Petitioner has objected.

IT IS ORDERED that:

1. The Objections, which reiterate arguments that were raised in the Petition and were addressed thoroughly and accurately in the R&R, are overruled for the reasons set forth in the R&R.

2. To the extent Petitioner attempts in his Objections to raise a belated claim that the prosecutor knowingly presented false evidence (Objections at 2, 5), that claim is denied as conclusory. See Blackledge v. Allison, 431 U.S. 63, 75 n.7, 97 S.Ct. 1621 (1977) (a federal habeas petition "is expected to state facts that point to a real possibility of constitutional error.") (internal quotation marks omitted).

3. Petitioner's Motion and Request to File a Second Amended Petition Based upon Actual Innocence and Newly Discovered Evidence ("Motion") [15] is DENIED. The Court finds Petitioner's Motion is a repeated attempt to seek relief on the ground that the victim in this case, Clarence Paschal, has recanted his original statement to the police identifying Petitioner as the person who shot him. However, Paschal's alleged recantation is neither new nor material. As discussed in the R&R, Paschal and his sister repudiated their original statements in their trial testimony. In fact, Paschal even denied he ever spoke to the police in the first place. However, both Paschal and his sister made far more credible, recorded statements to the police soon after the shooting positively and confidently identifying Petitioner as the shooter, and those statements were corroborated by video surveillance footage. Petitioner's attempt to amend his First Amended Petition ("FAP") to add an actual innocence claim based on Paschal yet again repudiating his original statements is futile, superfluous, and raises issues already correctly addressed and rejected in the R&R. The Motion is denied.

4. The Court accepts the findings and recommendation of the R&R.

5. Judgment shall be entered denying the FAP and dismissing this action with prejudice.

6. All other pending motions are denied as moot and terminated.

IT IS FURTHER ORDERED that the clerk of the Court shall serve a copy of this Order and the Judgment on all counsel or parties of record.


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