Jonathan Gonzalez v. B. Cates

C.D. California

Jonathan Gonzalez v. B. Cates

DecidedFebruary 8, 2023

Docket2:21-cv-06316

StatusUnknown

This text of Jonathan Gonzalez v. B. Cates (Jonathan Gonzalez v. B. Cates) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jonathan Gonzalez v. B. Cates, (C.D. Cal. 2023).

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Case 2:21-cv-06316-ODW-GJS Document 30 Filed 02/08/23 Page 1 of 2 Page ID #:2577

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 JONATHAN GONZALEZ, Case No. 2:21-cv-06316-ODW (GJS)

12 Petitioner ORDER ACCEPTING FINDINGS 13 v. AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE 14 B. CATES, JUDGE 15 Respondent.

16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all 19 documents filed and lodged in this action, the Report and Recommendation of 20 United States Magistrate Judge [Dkt. 11, “Report”], Petitioner’s Objections to the 21 Report [Dkt. 27], and Petitioner’s Motion To Amend Habeas Petition [Dkt. 28, 22 “Motion”]. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the 23 Court has conducted a de novo review of those portions of the Report to which 24 objections have been stated. 25 A district court has discretion, but is not required, to consider arguments 26 presented for the first time in objections to a report and recommendation. See 27 Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 28 F.3d 615, 621-22 (9th Cir. 2000). In the Motion, Petitioner asks the Court to amend Case #:21-cv-06316-ODW-GJS Document 30 Filed 02/08/23 Page 2of2 Page ID #:2578

1 || the operative habeas petition to include two new grounds for relief he has argued in 2 || his Objections: (1) that witness Sara Chavez testified falsely; and (2) that witness 3 || Vladimir Levicky testified falsely. There is no showing that either claim has been 4 || exhausted in the state courts, nor has any adequate explanation been presented for 5 || Petitioner’s failure to do so or for his delay in waiting to raise these new claims until 6 || after briefing was completed and the Report had issued. To the extent that 7 || Petitioner seeks to have the Court consider these newly-asserted matters as extant 8 || bases for federal habeas relief, the Court exercises its discretion to decline to 9 || consider any such belatedly-raised habeas claims. That said, the Court has carefully 10 || considered all of the arguments raised in the Objections to the Report. 11 Having completed its review, the Court accepts the findings and 12 || recommendations set forth in the Report. Accordingly, IT IS ORDERED that: the 13 || Petition is DENIED; the Motion is DENIED; and Judgment shall be entered 14 || dismissing this action with prejudice. 15 16 || DATE: February 8, 2023 eg 17 18 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28

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Case 2:21-cv-06316-ODW-GJS Document 30 Filed 02/08/23 Page 1 of 2 Page ID #:2577

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 JONATHAN GONZALEZ, Case No. 2:21-cv-06316-ODW (GJS)

12 Petitioner ORDER ACCEPTING FINDINGS 13 v. AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE 14 B. CATES, JUDGE 15 Respondent.

16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all 19 documents filed and lodged in this action, the Report and Recommendation of 20 United States Magistrate Judge [Dkt. 11, “Report”], Petitioner’s Objections to the 21 Report [Dkt. 27], and Petitioner’s Motion To Amend Habeas Petition [Dkt. 28, 22 “Motion”]. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the 23 Court has conducted a de novo review of those portions of the Report to which 24 objections have been stated. 25 A district court has discretion, but is not required, to consider arguments 26 presented for the first time in objections to a report and recommendation. See 27 Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 28 F.3d 615, 621-22 (9th Cir. 2000). In the Motion, Petitioner asks the Court to amend Case #:21-cv-06316-ODW-GJS Document 30 Filed 02/08/23 Page 2of2 Page ID #:2578

1 || the operative habeas petition to include two new grounds for relief he has argued in 2 || his Objections: (1) that witness Sara Chavez testified falsely; and (2) that witness 3 || Vladimir Levicky testified falsely. There is no showing that either claim has been 4 || exhausted in the state courts, nor has any adequate explanation been presented for 5 || Petitioner’s failure to do so or for his delay in waiting to raise these new claims until 6 || after briefing was completed and the Report had issued. To the extent that 7 || Petitioner seeks to have the Court consider these newly-asserted matters as extant 8 || bases for federal habeas relief, the Court exercises its discretion to decline to 9 || consider any such belatedly-raised habeas claims. That said, the Court has carefully 10 || considered all of the arguments raised in the Objections to the Report. 11 Having completed its review, the Court accepts the findings and 12 || recommendations set forth in the Report. Accordingly, IT IS ORDERED that: the 13 || Petition is DENIED; the Motion is DENIED; and Judgment shall be entered 14 || dismissing this action with prejudice. 15 16 || DATE: February 8, 2023 eg 17 18 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28

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