ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

GEORGE H. WU, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court has engaged in a de novo determination of the portions of the Report and Recommendation to which Objection were directed.

Petitioner's objection is directed to the statement in the Report and Recommendation that Petitioner failed to file a Reply to the Answer within the allotted time or request an extension of time to do so. According to Petitioner, he did file a Reply to the Answer on April 5, 2015 "alleging that the respondent's Answer must be vacated due to the procedural error of late filing." However, the Court's records do not reflect the receipt of any such Reply from Petitioner. Moreover, even if an objection to Respondent's one-day late filing of the Answer had been received, it would not have made any difference to the Magistrate Judge's findings and recommendations because a habeas petition cannot be granted by default. See Gordan v. Duran, 895 F.2d 610, 612 (9th Cir. 1989).

Respondent's objection is directed to the Magistrate Judge's finding that Respondent had not adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense to the inadequacy portion of Ground Two. Respondent correctly points out that the Magistrate Judge incorrectly characterized the inadequacy portion of Ground Two as an instructional error claim rather than an answer to a jury question. Respondent maintains that under California law, a defense counsel's express consent to a response to a jury question ordinarily works a forfeiture, see People v. Rodrigues, (1994) 8 Cal.4th 1060, 1193, and that Petitioner's claim regarding the inadequacy portion of Ground Two is procedurally defaulted. However, the Court need not address this argument since the Court retains the discretion to deny claims on the merits even if the claims are alleged to be procedurally defaulted. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits."); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("[C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an asserted procedural bar."). Here, the Court concurs with the Magistrate Judge's finding that Petitioner's claim regarding the inadequacy portion of Ground Two was without merit. Therefore, the Court accepts the findings and conclusions of the Magistrate Judge in the Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the First Amended Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.