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U.S. v. Moran-Torres, 2:10-cr-0231 TLN EFB P (TEMP). (2016)

Court: District Court, E.D. California Number: infdco20160401971 Visitors: 6
Filed: Mar. 31, 2016
Latest Update: Mar. 31, 2016
Summary: ORDER TROY L. NUNLEY , District Judge . Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302. On January 21, 2016, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings a
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ORDER

Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On January 21, 2016, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Movant has filed objections to the findings and recommendations.1

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed January 21, 2016, are adopted in full;

2. Movant's September 18, 2013 motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Docket No. 94) is denied; and

3. The Clerk of the Court is directed to close the companion civil case, No. 2: 13-cv-1954 TLN EFB P.

FootNotes


1. In his objections, Movant makes several allegations that could possibly be construed as new claims. Specifically, Movant alleges that his trial counsel Mr. Jimenez rendered ineffective assistance in connection with the plea process and that the prosecutor committed misconduct in failing to grant Movant a reduction in his sentence for acceptance of responsibility. See ECF No. 121 at 11, 14. A district court "has discretion, but is not required," to consider evidence and claims raised for the first time in the objection to a magistrate judge's report. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000); see also Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002) (district court abused its discretion in failing to consider petitioner's claim raised for the first time in objections to findings and recommendations). The district court must, however, "actually exercise its discretion" and not merely accept or deny the new claims. Howell, 231 F.3d at 622. After a careful reading of Movant's objections as a whole, the Court concludes that Movant's allegations about Mr. Jimenez and the prosecutor relate to Movant's claims as stated in the § 2255 motion and do not constitute new, freestanding claims. Accordingly, the Court declines to exercise its discretion to consider any allegations in Movant's objections that could be construed as new claims.
Source:  Leagle

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