Michael Anthony Castrellon v. Jeff Lynch

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL ANTHONY CASTRELLON, Case No. EDCV 20-1009-RGK (LAL) Petitioner, ORDER ACCEPTING REPORT AND

RECOMMENDATION OF UNITED v. STATES MAGISTRATE JUDGE

JEFF LYNCH,

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge’s Report and Recommendation, Petitioner’s Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.

To the extent Petitioner attempts to raise a new claim in his Objections, i.e. the trial court abused its discretion by denying Petitioner’s motion to strike a firearm enhancement or impose a lesser enhancement, the Court declines to formally address this belatedly-asserted allegation. A district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744- (9th Cir. 2002). Although Petitioner is pro se, he nevertheless had the opportunity to present his new claim at an earlier time but failed to do so. Moreover, Petitioner’s claims are not novel claims. See Sossa v. Diaz, 729 F.3d 1225, 1231 (9th Cir. 2013). However, the Court has unavailable for alleged errors in the interpretation or application of state sentencing laws by either a state trial court or appellate court. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). To the extent Petitioner could state a cognizable federal habeas claim based on an alleged violation of state sentencing law, he must show that the alleged error was “so arbitrary or capricious as to constitute an independent due process” violation. Richmond v. Lewis, 506 U.S. 40, 50, 113 S. Ct. 528, 121 L. Ed. 2d 411 7 (1992); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of fundamental unfairness, a state court’s misapplication of its own sentencing laws does not justify federal habeas relief.”). However, Petitioner has not shown his sentence was anything other than an ordinary application of California’s sentencing law.

Petitioner’s Objections otherwise lack merit for the reasons set forth in the Report and Recommendation.

Accordingly, IT IS ORDERED THAT:

1. The Report and Recommendation is approved and accepted; 2. Judgment be entered denying the Petition and dismissing this action with prejudice; and

3. The Clerk serve copies of this Order on the parties.

DATED: _M__a_r_c_h_ 1_,_ 2_0_2_1_________ ________________________________________ HONORABLE R. GARY KLAUSNER

UNITED STATES DISTRICT JUDGE