                                                                              FILED
                             NOT FOR PUBLICATION                               JAN 28 2010

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JEFFREY JONES,                                     No. 06-55616

              Petitioner - Appellant,              D.C. No. CV-05-06330-GAF

  v.
                                                   MEMORANDUM *
JOHN MARSHALL,

              Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Central District of California
                      Gary A. Feess, District Judge, Presiding

                       Argued and Submitted January 14, 2010
                                Pasadena, California

Before: SCHROEDER, CANBY and McKEOWN, Circuit Judges.

       Jeffrey Jones, a California state prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas corpus petition, challenging his conviction of

second degree murder, child abuse and related crimes. The district judge adopted

the final report and recommendation of the magistrate judge dismissing the petition



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
as untimely and refusing, in the exercise of discretion, to consider the petitioner’s

claim that the statute of limitation should be equitably tolled. The equitable tolling

argument was not raised until petitioner filed his objections to the magistrate’s

original report. As the district court pointed out, the petitioner had ample

opportunity to raise the issue in response to the state’s motion to dismiss on

timeliness grounds.

      The law of this Circuit, which is in accord with the laws of other Circuits,

grants a district court discretion to consider evidence presented for the first time in

a party’s objection to a magistrate judge’s recommendation. United States v.

Howell, 231 F.3d 615, 621 (9th Cir. 2000) (citing Freeman v. County of Bexar, 142

F.3d 848, 850-53 (5th Cir. 1998); Paterson-Leitch Co., Inc. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)). We cautioned, however,

that the district court “must actually exercise its discretion, rather than summarily

accepting or denying the motion.” Id. at 622.

      In this case, the magistrate judge was scrupulously careful in stating

expressly that he was exercising his discretion to refuse to consider the evidence

because the equitable tolling claim was not novel and should have been raised

earlier. Thus petitioner’s claim is distinguishable from the situation in Brown v.

Roe, 279 F.3d 742 (9th Cir. 2002). There was no abuse of discretion in this case.


                                           2
      The district court’s earlier dismissal of another petition for failure to name

the correct party has no bearing on the dismissal of the petition involved in this

appeal. No contention regarding the earlier petition was ever presented to the

district court in these proceedings.

      AFFIRMED.




                                           3
