Opinion
Case No. CV 12-3071-DSF (DTB)
02-04-2014
CARLOS CUMPLIDO, Petitioner, v. FRED FOULK, Acting Warden, Respondent.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendations of the Magistrate Judge.
To the extent petitioner raises new claims in his Objections (see Objections at 18-19, 27-28) and provides additional evidence, the Court exercises its discretion not to consider such. See Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). While the Court recognizes petitioner's pro se status, it also considers that petitioner has had ample opportunity to present these claims and evidence, but failed to do so. Further, these claims are neither "novel" nor do they rely on recent changes in the law. See Brown, 279 F.3d at 745 (finding that the district court abused its discretion by failing to consider pro se petitioner's "relatively novel claim under a relatively new statute."). Finally, it appears that petitioner has failed to exhaust his state court remedies with respect to his new claims. See 28 U.S.C. § 2254(b).
IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.
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DALE S. FISCHER
UNITED STATES DISTRICT JUDGE