Jones

MEMORANDUM

Jeffrey Jones, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, challenging his conviction of second degree murder, child abuse and related crimes. The district judge adopted the final report and recommendation of the magistrate judge dismissing the petition as untimely and refusing, in the exercise of discretion, to consider the petitioner’s claim that the statute of limitation should be equitably tolled. The equitable tolling argument was not raised until petitioner filed his objections to the magistrate’s original re-poi't. As the district court pointed out, the petitioner had ample opportunity to raise the issue in response to the state’s motion to dismiss on timeliness grounds.

The law of this Circuit, which is in accord with the laws of other Circuits, grants a district court discretion to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation. United States v. Howell, 231 F.3d 615, 621 (9th Cir.2000) (citing Freeman v. County of Bexar, 142 F.3d 848, 850-53 (5th Cir.1998); Paterson- Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d…