ORDER

Overruling Petitioner's Objections; Adopting Report & Recommendation; Denying the Habeas Corpus Petition; Dismissing the Action With Prejudice; Directing Entry of Separate Final Judgment; Terminating and Closing the Action (JS-6)

VALERIE BAKER FAIRBANK, Senior District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 ("Petition") (CM/ECF Document ("Doc.") 1), the Respondent's answer (Doc. 12) and accompanying memorandum (Doc. 13), the relevant decision(s) of the California state courts, the state-court "lodged documents" submitted by the Respondent in paper form (listed in the index at Doc. 14), the Report and Recommendation ("R&R") issued by the United States Magistrate Judge pursuant to Fed. R. Civ. P. 72(b)(1) and 28 U.S.C. § 636(b)(1)(B) on September 14, 2016 (Doc. 22), Petitioner's timely objections to the R&R (Doc. 23), and the applicable law. Federal Rule of Civil Procedure 72(b)(2) gave Respondent a right to respond to the objections, but the time to do so has elapsed and Respondent has filed neither a response nor a request for an extension of time. Accordingly, the Court proceeds to the merits without waiting further.

When a party objects to the R&R, "[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1). A district court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

In his Objections, Petitioner has made new assertions and attached documents, one of which is not part of the state record previously lodged in this case and was not previously presented in this action. "[A] district court has discretion, but is not required, 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). The Court has exercised its discretion and considered the the new assertions and new evidence, but concludes they do not warrant departure from the conclusions articulated in the R&R. Petitioner's contention that audio recordings he unsuccessfully sought to obtain after his conviction "will make the case even more controversial" fails to raise any tenable basis for finding error in the R&R. Petitioner also claims that his conviction depended on "very controversial and contradicting statements" because a hearsay statement was not admitted at his co-defendant's trial, but was admitted at his trial. This argument appears to revolve around Petitioner's first ground raised in his Petition, that the trial court erred by admitting the victim's hearsay statement to the police officer that he was struck by both men. As explained in the R&R, the statement was not testimonial and therefore its admission did not violate the Confrontation Clause. Thus, the Court finds Petitioner's objections are without merit.

Accordingly, having completed its review, the Court will accept the Magistrate Judge's factual findings and legal conclusions and implement the Magistrate Judge's recommendations.

ORDER

Petitioner's objections are OVERRULED.

The Report and Recommendation is ADOPTED.

The petition for a writ of habeas corpus is DENIED.

The Court will rule on a certificate of appealability by separate order.

Final judgment will be entered in favor of respondent consistent with this Order.

This action is DISMISSED with prejudice.

The case SHALL BE TERMINATED and closed (JS-6).