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

1

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE GARCIA, ) Case No. CV 21-5878 FMO (GJS) ) 12 Petitioner, ) ) ORDER ACCEPTING AMENDED REPORT 13 v. ) AND RECOMMENDATION OF UNITED ) STATES MAGISTRATE JUDGE 14 M. GAMBOA, Warden, ) ) 15 Respondent. ) ) 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, and 18 the Amended Report and Recommendation of the United States Magistrate Judge. The Court has 19 engaged in a de novo review of those portions of the Amended Report and Recommendation to 20 which Petitioner has objected. 21 The Court recognizes that Petitioner has presented for the first time in his Objections a 22 sentencing error claim. (Dkt. 24, “Objections” at 8, 11-13). The Court exercises its discretion to 23 decline to consider Petitioner’s belatedly presented claim. See Brown v. Roe, 279 F.3d 742, 744- 24 45 (9th Cir. 2002) (stating that a district court has discretion, but is not required, to consider 25 evidence or claims presented for the first time in objections to a report and recommendation).1 26 27 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 28 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

1 Otherwise, Petitioner's Objections lack merit for the reasons stated in the Amended Report and 2 Recommendation. 3 IT IS THEREFORE ORDERED that the Amended Report and Recommendation is 4 accepted and Judgment be entered denying the Petition and dismissing this action with prejudice. 5 Dated this 1st day of March, 2023. 6 /s/

FERNANDO M. OLGUIN

7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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 28 to the highest state court available.” Id. (internal quotation marks and citation omitted)). 2