Summary
declining to consider new claim raised in objections to R. & R. because analysis in R. & R. was "equally applicable" to it
Summary of this case from Brookins v. PfeifferOpinion
No. CV 10-4765 ODW (FFM)
07-27-2012
GUILLERMO NAVARRO, Petitioner, v. KELLY HARRINGTON, 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 entire record in this action, the attached Report and Recommendation of United States Magistrate Judge ("Report"), and the objections thereto. Petitioner has raised a new ineffective assistance claim in his objections. The new claim argues that petitioner's counsel rendered ineffective assistance by failing to advise petitioner to stipulate to the truth of the gang allegations. When a claim is asserted for the first time in objections to the Report and Recommendation of United States Magistrate Judge, the Court has discretion whether or not to consider it. Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002). Here, the Court exercises its discretion not to consider the claim because the harmless error analysis contained in the Report and Recommendation with respect to counsel's failure to move to sever the gang allegation is equally applicable to the failure to advise petitioner to stipulate to the truth of such allegations.
Good cause appearing, the Court concurs with and accepts the findings of fact, conclusions of law, and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.
IT IS ORDERED that judgment be entered dismissing the Petition on the merits with prejudice.
_________________
OTIS D. WRIGHT
United States District Judge