Jose Garcia v. M. Gamboa

Opinion

Case 2:21-cv-05878-FMO-GJS Document 25 Filed 03/01/23 Page 1 of 2 Page ID #:1086

JOSE GARCIA, ) Case No. CV 21-5878 FMO (GJS) ) Petitioner, ) ) ORDER ACCEPTING AMENDED REPORT v. ) AND RECOMMENDATION OF UNITED ) STATES MAGISTRATE JUDGE M. GAMBOA, Warden, ) ) Respondent. ) ) Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, and the Amended Report and Recommendation of the United States Magistrate Judge. The Court has engaged in a de novo review of those portions of the Amended Report and Recommendation to which Petitioner has objected. The Court recognizes that Petitioner has presented for the first time in his Objections a sentencing error claim. (Dkt. 24, “Objections” at 8, 11-13). The Court exercises its discretion to decline to consider Petitioner’s belatedly presented claim. See Brown v. Roe, 279 F.3d 742, 744- 45 (9th Cir. 2002) (stating that a district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a report and recommendation).1 1 The Court notes that it appears Petitioner’s sentencing error claim is unexhausted because he has not presented it to the California Supreme Court. “AEDPA prohibits federal courts from granting habeas relief on claims for which the petitioner has not ‘exhausted the remedies available Case 2:21-cv-05878-FMO-GJS Document 25 Filed 03/01/23 Page 2 of 2 Page ID #:1087

Otherwise, Petitioner's Objections lack merit for the reasons stated in the Amended Report and Recommendation. IT IS THEREFORE ORDERED that the Amended Report and Recommendation is accepted and Judgment be entered denying the Petition and dismissing this action with prejudice. Dated this 1st day of March, 2023. /s/ FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE in the courts of the State.’” See Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021) (quoting 28 U.S.C. § 2254(b)(1)(A)). “Exhaustion requires that a petitioner fairly present his federal claims to the highest state court available.” Id. (internal quotation marks and citation omitted)). 2