(HC) Pulizzano v. Benavidez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES JOSEPH PULIZZANO, No. 2:21-cv-0503 WBS CKD P 12 Petitioner, 13 v. ORDER 14 JENNIFER BENAVIDEZ, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 13, 2023, the magistrate judge filed findings and recommendations herein which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Petitioner has filed 23 objections to the findings and recommendations. 24 In the operative amended petition for writ of habeas corpus, petitioner asserts he was 25 denied effective assistance of counsel as guaranteed under the Sixth Amendment. In his 26 objections, petitioner asserts instances of ineffective assistance of counsel not raised in the 27 amended petition which involve the failure to call witnesses including petitioner’s wife, sister and 28 unidentified character witnesses. The court considers these new claims. The court has discretion 1 | toconsider, but is not required to, claims presented for the first time in objections to findings and 2 | recommendations. Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002). Here, the court declines 3 | to exercise that discretion as petitioner fails to indicate why the claims were not presented in his 4 | amended petition and it appears petitioner has not exhausted state court remedies with respect to 5 | the new claims, so relief is not available anyway. 28 U.S.C. § 2254(b)(1)(A). In any case, with 6 | respect to the failure to call the witnesses identified above, plaintiff fails to satisfy either prong of 7 | the standard from Strickland v. Washington, 466 U.S. 668, 688 (1984) identified by the 8 | magistrate judge. 9 With respect to the findings made by the magistrate judge and in accordance with the 10 | provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo 11 | review of this case. Having carefully reviewed the entire file, the court finds the findings and 12 | recommendations to be supported by the record and by proper analysis. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations filed April 13, 2023, are adopted in full; 15 2. Claims 1 and 3 in petitioner’s amended petition for a writ of habeas corpus (ECF No. 16 || 24) are denied; 17 3. This case is closed; and 18 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 19 | 2253. 20 | Dated: June 28, 2023 A theo th. é.b-~-— 21 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 23 24 25 26 || puli0503.805.he 27 28