Case 2:20-cv-07584-JWH-ADS Document 87 Filed 01/30/23 Page 1 of 3 Page ID #:1005

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 HUMBERTO GONZALEZ, Case No. 2:20-7584 JWH (ADS) 11 Petitioner, 12 v. ORDER ACCEPTING UNITED STATES MAGISTRATE JUDGE’S 13 NEIL McDOWELL, Warden, REPORT AND RECOMMENDATION 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 2:20-cv-07584-JWH-ADS Document 87 Filed 01/30/23 Page 2 of 3 Page ID #:1006

1 Pursuant to

, the Court has reviewed the First Amended 2 Petition (“FAP”) (Dkt. No. 9), Respondent’s Second Motion to Dismiss the FAP 3 (Dkt. No. 70), Petitioner’s Opposition to the Motion to Dismiss (Dkt. No. 78), 4 Respondent’s Reply (Dkt. No. 79), the Report and Recommendation of the United 5 States Magistrate Judge (Dkt. No. 85), Petitioner’s Objections (Dkt. No. 86), and 6 all the records and files herein. The Court has engaged in a de novo review of those 7 portions of the Report and Recommendation to which objections were made and 8 OVERRULES the objections. The Court accepts the findings and 9 recommendations of the Magistrate Judge. 10 To the extent that Petitioner argues in his Objections that he is actually 11 innocent (Dkt. No. 86 at 5-6), the Court notes that an allegation of actual 12 innocence—even if it met the standard enunciated in Schlup v. Delo,

(1995)—would not excuse Petitioner from exhausting his claims in state court. See 14 Hider v. Walker, No. CV 07-7119-DDP (RNB),

, at *1-*2 & *4-*5 15 (C.D. Cal. Feb. 17, 2009). Nevertheless, the Court has considered Petitioner’s 16 allegation of actual innocence and finds that it does not warrant any relief here. To 17 establish actual innocence, Petitioner must show that “in light of new [reliable] 18 evidence, ‘it is more likely than not that no reasonable juror would have found 19 petitioner guilty beyond a reasonable doubt.’” House v. Bell,

, 537 20 (2006) (quoting Schlup,

). Petitioner has not met this standard. 21 Accordingly, it is hereby ORDERED as follows: 22 1. The Report and Recommendation of the United States Magistrate 23 Judge (Dkt. No. 85) is APPROVED and ACCEPTED. 24 2. The Second Motion to Dismiss the FAP (Dkt. No. 70) is 25 GRANTED. 26 3. This case is DISMISSED without prejudice. 27

2 se 2:20-cv-07584-JWH-ADS Document 87 Filed 01/30/23 Page 3of3 Page ID #:1007

1 4. Judgment is to be entered accordingly. 2 IT IS SO ORDERED. 4 |/DATED: January 30, 2023 MHA 5 THE HONORABLE JOHN W. HOLCOMB 6 United States District Judge 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27