Gakik Akopyan v. Brian Kibler

• Court: District Court, C.D. California
• Decided: August 18, 2022
• Docket: 2:21-cv-06696
• Status: Unknown

Opinion

Case 2:21-cv-06696-RSWL-DFM Document 23 Filed 08/18/22 Page 1 of 3 Page ID #:640

1 'O' 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 2:21-CV-06696-RSWL-DFM 12 GAGIK AKOPYAN, ORDER ACCEPTING FINDINGS 13 Petitioner, RECOMMENDATIONS OF UNITED 14 v. STATES MAGISTRATE JUDGE[21] 15 AND JUDGMENT BRIAN KIBLER, 16 Respondent. 17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed 20 the Petition for Writ of Habeas Corpus (“Petition”) [1], 21 records on file herein, and the Report and 22 Recommendation of the United States Magistrate Judge 23 [21]. Further, as required by Federal Rule of Civil 24 Procedure 72(b)(3), the Court has engaged in de novo 25 review of the portions of the Report and Recommendation 26 to which Petitioner specifically has objected [22]. 27 Petitioner argues for the first time in his 28 Objections that he has shown good cause for a Rhines 1 Case 2:21-cv-06696-RSWL-DFM Document 23 Filed 08/18/22 Page 2 of 3 Page ID #:641

1 stay due to ineffective assistance of his post-

2 conviction counsel. A district court has discretion,

3 but is not required, to consider evidence or claims 4 presented for the first time in objections to a report 5 and recommendation. See United States v. Howell, 231 6 F.3d 615, 622 (9th Cir. 2000); see also Blunk v. Ryan, 7 728 F. App'x 736, 737 (9th Cir. 2018). The Court 8 therefore declines to consider Petitioner’s ineffective 9 assistance of counsel argument. 10 Petitioner’s remaining objections lack merit for 11 the reasons stated in the Report and Recommendation. 12 Having considered the Petition, Respondent’s Motion to 13 Dismiss (“Motion”) [8], the papers filed pursuant to the 14 Motion [18, 19], and Petitioner’s Objections to the 15 Report and Recommendation, the Court finds no defect of 16 law, fact, or logic in the Report and Recommendation. 17 To be clear, Petitioner has not exhausted his state 18 court remedies for the Petition to be properly presented 19 before this Court. See, e.g., Castillo v. McFadden, 399 20 F.3d 993, 999 (9th Cir. 2005). Nor has Petitioner shown 21 good cause for this Court to grant a Rhines stay. See 22 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). 23 24 /// 25 /// 26 /// 27 /// 28 /// 2 Case 2:21-cv-06696-RSWL-DFM Document 23 Filed 08/18/22 Page 3 of 3 Page ID #:642

1 Accordingly, IT IS ORDERED THAT:

2 1. Petitioner’s objections are overruled; and 3 2. The Report and Recommendation of the Magistrate 4 Judge is accepted; and 5 3. Judgment is entered denying the Petition and 6 dismissing this Action without prejudice. 7 8 DATED: August 18, 2022 _______/_s/_ R_o_n_a_ld_ S_._W_. _Le_w__________ 9 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3