Opinion
Case No. 2:16-cv-08557-ODW-KES
03-10-2020
WALTER GLENN COMPTON, Petitioner, v. WARREN MONTGOMERY, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the initial Petition (Dkt. 1), the operative First Amended Petition (Dkt. 66), the Report and Recommendation of the United States Magistrate Judge (Dkt. 83), and the other records on file herein. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections (Dkt. 84, 85) have been made. The Court accepts the report, findings, and recommendations of the Magistrate Judge.
Petitioner's objections appear to raise claims of prosecutorial misconduct based on the prosecutor's alleged mischaracterization of evidence during argument and/or the prosecutor's decision to introduce certain evidence at trial. (See Dkt. 84 at 2-3, 6 [referring to a "habeas claim of prosecutorial misconduct" and arguing that the prosecutor "intentionally mislay [sic] the jury by introducing false and misleading evidence to the court"]; Dkt. 85 at 2 [same].) These claims do not appear in the operative First Amended Petition, because the Court previously denied Petitioner leave to amend his Petition to include them. (Dkt. 34, 37.) Thus, they are not properly raised at this time. To the extent the objections can be construed as raising new claims and arguments, the Court exercises its discretion not to consider them. See Brown v. Roe, 279 F.3d 742, 744-46 (9th Cir. 2002) (holding that a district court has discretion, but is not required, to consider evidence or arguments presented for the first time in a party's objection to a magistrate judge's recommendation but the court "must actually exercise its discretion," rather than summarily accepting or denying the R&R).
IT IS THEREFORE ORDERED that Judgment be entered denying the First Amended Petition with prejudice. DATED: March 10, 2020
/s/_________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE