Opinion
2:00-CV-0110
March 13, 2001
REPORT AND RECOMMENDATION TO DENY RESPONDENT'S MOTION TO DISMISS
Came this day for consideration respondent Johnson's Motion to Dismiss Federal Proceedings for Failure to Comply with the Statute of Limitations filed August 14, 2000. Respondent seeks to preclude petitioner JUSTIN WILEY DICKENS from filing a Federal Petition for a Writ of Habeas Corpus by a Person in State Custody. Petitioner is currently incarcerated on death row in Huntsville, Texas resulting from a conviction out of the 181st Judicial District Court, Randall County, Texas, for the offense of capital murder with a deadly weapon while committing a robbery. After being found guilty, petitioner was sentenced to death by lethal injection. For the reasons hereinafter set forth, it is the recommendation of the undersigned United States Magistrate Judge that respondent's motion to dismiss is DENIED.
No federal petition has yet been filed. Respondent contends limitations ran prior to April 4, 2000, when this federal action commenced with the filing of petitioner's motion for appointment of counsel. Subsequent to appointment of counsel for petitioner, it was agreed that the limitations issue should be addressed prior to the filing of the petition and response addressing the merits.
I. PROCEDURAL HISTORY
Petitioner DICKENS was indicted in the 181st District Court of Randall County, Texas for the capital offense of murder with a deadly weapon for causing the death of Francis Carter while committing a robbery. Petitioner pled not guilty, had a jury trial, and was found guilty by the jury on May 2, 1995. Following a separate punishment hearing, petitioner's punishment was assessed at death. DICKENS' sentence was automatically appealed to the Texas Court of Criminal Appeals. On April 23, 1997, that court affirmed his sentence and conviction in an unpublished opinion. Dickens v. State, No, 72, 129 (Tex.Crim. App, April 23, 1997) (unpublished). DICKENS did not file a petition for a writ of certiorari in the United States Supreme Court, making his conviction final on July 22, 1997. SUP. CT. R. 13 (West 1998).On May 8, 1997, petitioner requested the state trial court appoint counsel to represent him in the filing a state petition for writ of habeas corpus. On May 12, 1997, the trial court appointed attorney Kent Birdsong. The trial court also set a deadline of 180 days to file the petition, i.e. on or before November 10, 1997 (November 8, 1997 was a Saturday). Sometime in November, presumably prior to the deadline, counsel Birdsong filed a motion for continuance and was granted an extension to file until February 7, 1998. On January 26, 1998, state habeas counsel filed a second motion for extension of time, which was granted, giving him until March 24, 1998 to file the state writ. On March 23, 1998, state habeas counsel filed petitioner's state writ application. On April 16, 1999, the trial court entered Findings of Fact and Conclusions of Law recommending denial of the state writ application. On May 26, 1999, the Texas Court of Criminal Appeals, in a per curiam opinion, denied petitioner's state writ application finding the trial court's Findings of Fact and Conclusions of Law to be supported by the record.
Although the Texas Code of Criminal Procedure Article 11.071 § 2(g) in effect during the period in question, mandated that petitioner, or his counsel, ". . . on the 15th day after the date the court of criminal appeals denies relief, . . . move to be appointed as counsel in federal habeas review under 21 U.S.C. § 848(q) or equivalent provision or, if necessary, move for the appointment of other counsel under 21 U.S.C. § 848(q) or equivalent provision," no motion for appointment of counsel appears prior to October 12, 1999. The October 12, 1999 motion, however, was not filed in the appropriate court, i.e. in this federal court, but instead was sent to the Texas Court of Criminal Appeals. On April 5, 2000, state habeas counsel did file a motion to be appointed counsel for federal habeas review with this Court. On April 6, 2000, the Texas Court of Criminal Appeals denied the October 12, 1999 motion without prejudice so that counsel could proceed in the proper court. On April 17, 2000, respondent filed a response to the motion for appointment of counsel advising of respondent's intention to move for dismissal of any proceeding on the grounds it was time barred. On July 9, 2000, state habeas counsel filed an amended motion for appointment of counsel, acknowledging he may have rendered ineffective assistance of counsel and therefore should be replaced as counsel on DICKENS' case. The undersigned United States Magistrate Judge granted this amended motion and appointed Mr. Robert Abbott and Ms. Jan Hemphill as counsel for petitioner on July 21, 2000. On August 14, 2000, respondent Johnson filed his motion to dismiss for failure to comply with the statute of limitations.
Currently this provision is found at Texas Code of Criminal Procedure Article 11.071 § 2(e).
The motion and letter are stamped "received" October 22, 1999 by the Texas Court of Criminal Appeals.
The motion is styled as being in this federal court. Apparently state habeas counsel intended the motion to be filed in federal court but it was erroneously mailed to the Court of Criminal Appeals.
During the period May 26, 1999, when the state habeas petition was denied, until April 5, 2000, when the first properly filed motion for appointment of counsel was filed in federal court, petitioner DICKENS corresponded with Mr. Birdsong, his state habeas counsel, and with the state trial court, attempting to ascertain the status of his case. As evidenced in his affidavit, DICKENS states as follows:
On March 12, 1999, Mr. Birdsong sent me copies of the State's response to, and trial court's finding and recommendation on, the state writ application. I now understand that the Court of Criminal Appeals denied my state habeas petition on May 26, 1999. Mr. Birdsong did not, however, send me a copy of, or notify me about, this disposition by the Court of Criminal Appeals.
On October 12, 1999, Mr. Birdsong mailed me a copy of a document entitled Motion for Appointment of Counsel Pursuant to 21 U.S.C. § 848(q). In the accompanying letter, Mr. Birdsong said: "I am awaiting the Federal Court's ruling on my Motion for Appointment of Counsel in Federal Court. There is also a Federal Public Defender's Office here also [sic]. Either I will continue as counsel or they will take over your writ in Federal Court." In addition, Mr. Birdsong promised to visit me in December before Christmas. He never did.
Mr. Birdsong did not tell me about the federal one-year statute of limitations for filing writ applications. When I found out from someone else about a federal deadline, I wrote Mr. Birdsong several times [July 31, 1999; December 13, 1999; February 28, 2000] asking when my deadline was, but he did not reply. I had my family call, but Mr. Birdsong would not answer their calls. My dad went to his office, but Mr. Birdsong would not see my dad. I wrote to the Randall County District Clerk and Judge Sam Kiser of the 181st Judicial District Court, Randall County, Texas [received August 5, 1999] but got no reply. I never received either an order or explanation from Mr. Birdsong concerning the disposition of the October 12, 1999 motion to appoint counsel, which I believed Mr. Birdsong had filed on my behalf. I now understand that Mr. Birdsong mailed this motion to the wrong court (Texas Court of Criminal Appeals), and received a denial order which he never forwarded to me.
On April 4, 2000, Mr. Birdsong mailed me a copy of a second document entitled Motion for Appointment of Counsel Pursuant to 21 U.S.C. § 848(q). In the transmittal letter accompanying this second appointment motion, Mr. Birdsong did not mention his failure to file the October 12, 1999 Motion in the proper court. Sixteen days later, Mr. Birdsong wrote me another letter stating that he had failed to meet the filing deadline, and that he was getting off my case. He did not say why he missed the deadline.
II. RESPONDENT'S POSITION
By his motion, respondent maintains petitioner's application should be denied because petitioner failed to file his federal petition for a writ of habeas corpus within the requisite one-year period of limitation. Respondent relies on the limitations period in 28 U.S.C. § 2244(d)(1), which was added by the Anti-Terrorism and Effective Death Penalty Act of 1996 [hereinafter AEDPA]. As relevant to respondent's motion to dismiss, that section provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of . . .
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
Title 28 U.S.C. § 2244(d)(2) further provides:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Respondent argues the AEDPA, and the period of limitation established therein, became effective on April 24, 1996, the day the AEDPA was signed into law. He thus argues the limitations period applies to all petitions and proceedings filed after April 24, 1996.
Respondent contends the state court judgment of conviction became final on July 22, 1997, ninety days after expiration of the period allowed for filing a petition for writ of certiorari in the United States Supreme Court pursuant to Rule 13 of the Rules of the Supreme Court. Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Consequently, respondent argues, the one-year grace period for filing a federal petition or initiating federal proceedings ended no later that July 22, 1998. Respondent acknowledges the AEDPA exempts from the limitations period the time during which a properly filed application for state post conviction or other collateral review is pending. Respondent submits that DICKENS state habeas petition was filed on March 23, 1998, 244 days after limitations began to run on the date the state conviction became final (July 22, 1997). The state petition was denied May 26, 1999. Respondent argues the federal petition was due 121 days after that date, or, no later than September 24, 1999. Respondent then argues that pursuant to state law, i.e. Texas Code of Criminal Procedure 11.071(2)(g), petitioner had fifteen (15) days from the denial of state habeas relief to file a motion for appointment of counsel in federal court, or by June 10, 1999. Thus, says respondent, even assuming this filing would have tolled the limitations period, petitioner is still untimely because counsel did not attempt to initiate federal proceedings, albeit unsuccessfully, until October 12, 1999, well after the final date for filing in federal court. Respondent contends equitable tolling is not available in that no "rare and exceptional" circumstance exists which would warrant such.
Respondent objected to the appointment of counsel on the merits, but did not object to the appointment of counsel for the limited purpose of determining whether petitioner's cause of action is time barred. Counsel for all parties and the undersigned conferred by telephone on August 8, 2000, wherein it was discussed and decided that the limitations question should be resolved prior to the filing of the petition and the response on the merits.
III. PETITIONER'S POSITION
Petitioner contends he is entitled to equitable tolling and requests the Court to:
1. Enter an order equitably tolling the time that lapsed between the date of appointment by the state of incompetent counsel and the date of entry of this Order; or, at an absolute minimum, between the date of state habeas denial and the date of entry of this Order; and 2. Deny Respondent Johnson's Motion to Dismiss Federal Proceedings for Failure to Comply With the Statute of Limitations.
Petitioner apparently is referring to the undersigned's Order Granting Petitioner's Modified Motion for Appointment of Counsel Pursuant to 21 U.S.C. § 848(q) issued July 21, 2000.
Petitioner argues he is entitled to equitable tolling because state habeas counsel, appointed by the trial court to represent petitioner in his state habeas proceedings, erred in three respects:
1. State-appointed habeas counsel received an unauthorized forty-five day extension (consuming critical time necessary for Petitioner's subsequent federal writ application), and takes almost ten-and-a-half months to file and eighteen-page writ application.
2. State-appointed habeas counsel violated his statutory duty to file a motion for the appointment of counsel to represent Petitioner in federal habeas proceedings within fifteen days of the denial of relief in the Texas Court of Criminal Appeals.
3. State-appointed habeas counsel misled Petitioner into believing that federal habeas proceedings had been properly initiated when, in fact, the motion to appoint counsel had mistakenly been filed with a court totally lacking jurisdiction.
As stated supra, state habeas counsel was appointed on May 12, 1997. The deadline for filing the state application was set to not exceed 180 days from counsel's appointment, or on November 10, 1997. State habeas counsel requested and received two extensions of time in which to file the state application. The last extension set the filing date at March 24, 1998. Petitioner avers, in his first ground, that this second extension of time for 45 days, exceeded the 90 day statutory limit authorized by Texas law, i.e. the former Tex. Code Crim. Proc. Ann. art. 11.071 § 4(f) (1995) (amended 1999). Petitioner also points out that the Texas Court of Criminal Appeals apparently considered the merits of the state application despite this unauthorized extension, on the theory that the extension misled petitioner and that dismissal of the state application for that reason would deny due course of law under the Texas constitution. Petitioner essentially argues that state habeas counsel not only used up an excessive amount of the time which was needed to proceed on the federal application, but also failed to notify petitioner when the Texas Court of Criminal Appeals denied his state application thus denying petitioner the ability, on a pro se basis, to timely pursue relief in federal court.
By his second ground, petitioner claims state habeas counsel violated his statutory duty to file a motion to appoint counsel in the federal court within 15 days of denial of relief by the Texas Court of Criminal Appeals, or on or before June 10, 1999, despite petitioner's repeated requests regarding the status of his case. Petitioner also argues, and respondent appears to concede, that the Texas Court of Criminal Appeals, pursuant to Tex. Code. Crim. Proc. art. 11.071 § 2(e), was authorized, in fact charged, to ensure petitioner's right to federal habeas review was protected i.e. the Texas Court of Criminal Appeals had an affirmative duty. Petitioner contends this warrants equitable tolling.
By his third ground, petitioner discusses state habeas counsel's misrepresentations to petitioner, specifically including the representation that petitioner's federal habeas proceedings had been properly initiated in October of 1999. Petitioner argues his counsel abandoned him, would not correspond with him regarding the status of his case, and overall acted incompetently. Because Texas law entitled petitioner to "competent counsel," petitioner argues he was entitled to rely on the representations of Mr. Birdsong and cannot be held personally accountable for the untimely filing of the federal application. Petitioner submits, due to the circumstances of this case, equitable tolling is warranted.
IV.
Dismissal of a first habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protection of the Great Writ entirely, risking injury to an important interest in human liberty. Lonchar v. Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996).
LIMITATIONS A. Statutory limits.
The AEDPA sets forth a one-year statute of limitations for the filing of a 28 U.S.C. § 2254 habeas corpus action. Pursuant to § 2254, the one-year limitation period runs from the date on which judgment became final by the conclusion of direct review, or the expiration of the time for seeking such review from the affirmance of the conviction and death penalty by the Texas Court of Criminal Appeals. Petitioner had ninety days in which to seek a writ of certiorari from the United States Supreme Court. SUP. CT. R. 13 (West 1998). Therefore, his state court conviction and death sentence became final, for purposes of AEDPA limitations, on July 22, 1997. Section 2244 exempts from counting toward the period of limitation, the time during which a properly filed application for state post-conviction or other collateral review is pending. In this case, the state habeas petition was filed on March 23, 1998. Therefore, 243 days of the limitation period expired prior to the filing of the state habeas corpus petition. The state habeas corpus petition was denied on May 26, 1999. 122 days then remained within the one-year limitations period. Therefore, the federal action had to be instituted on or before September 25, 1999. The motion for appointment of counsel by which this federal action was instituted was not filed until April 5, 2000. Therefore, unless there exists some exception to the statutory provisions outlined above, or unless petitioner is entitled to equitable tolling, any federal habeas corpus action appears to be time-barred since none was instituted prior to September 25, 1999.B. Equitable tolling.
DICKENS had 122 days of the limitations period remaining after dismissal of the state habeas petition on May 26, 1999, in which to initiate his federal action. DICKENS did not attempt to initiate the federal action until October 12, 1999, when he filed his motion for appointment of counsel. His attempt to secure counsel was unsuccessful, since he filed such motion in the Texas Court of Criminal Appeals as opposed to the federal court. DICKENS did not actually initiate the federal action until April 5, 2000. Using either date, October 12, 1999, or April 5, 2000, DICKENS filing of his motion for appointment of counsel is beyond the 122 days which remained on the limitations period, i.e. September 25, 1999. While the issue in this case is a substantial one, it is not a complicated one. If, as respondent argues, equitable tolling does not apply, then the federal action is time-barred. If equitable tolling does apply, then the federal action is not time-barred.
The limitations provision of the AEDPA is not a jurisdictional bar and therefore, in appropriate circumstances, such can be equitably tolled. Equitable tolling is justified only in "rare and exceptional" circumstances. Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998) cert. denied 526U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). Equitable tolling applies principally when the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights. A garden variety claim of excusable neglect does not support equitable tolling. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
At first glance, it appears DICKENS would be entitled to equitable tolling because of the inaction of his state habeas counsel in pursuing federal relief and more critically in failing to pursue appointment of federal counsel, either himself or someone else, as required by the Texas Code of Criminal Procedure. Critical to this issue, however, is 28 U.S.C. § 2254(i). This statute provides that ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in proceedings arising under § 2254, and argues respondent, cannot justify equitable tolling. If ineffectiveness or incompetence, by definition, cannot be a ground for relief, even with respect to equitable tolling, then, in the opinion of the undersigned, DICKENS' federal action is time-barred, because there are no other grounds which, in the opinion of the undersigned, warrant tolling. If, on the other hand, § 2254(i) does not prohibit ineffectiveness or incompetence of counsel from being a circumstance entitling one to equitable tolling, but only prohibits asserting a claim for habeas relief on the merits of a § 2254 action based upon ineffectiveness or incompetence of counsel, then in the opinion of the undersigned, DICKENS would be entitled to equitable tolling.
There is no constitutional right to appointment of counsel in collateral review. However, the state of Texas and the United States government have conferred a statutory right to the appointment of counsel in death penalty habeas convictions. Texas Code of Criminal Procedure, art. 11.071; 21 U S.C. § 848(q). If there is a statutory right to the assistance of counsel, does that statutory right not confer a right to the appointment of effective counsel? If, per § 2254(i), it does not, then, arguably, the failure of the state court to appoint counsel regarding the state habeas proceeding, in clear violation of the Texas statute, would appear unreviewable in a federal habeas action. Further, while the federal appellate court, by mandamus, could compel an inferior federal court to appoint counsel on the federal habeas action, if that appointed counsel then failed to file a petition or filed a totally meritless and ineffectual federal habeas petition, such would also be unreviewable. Such a scenario arguably raises issues of the constitutionality of § 2254(i), as regards capital cases, in that if the law confers a statutory right to appointment of counsel, should there not be, under the 6th Amendment, a right to the appointment of competent counsel. Since, in this case, the undersigned finds that § 2254(i) does not prohibit equitable tolling based on ineffectiveness of counsel, it is not necessary to reach any such constitutional question.
In Helton v. Secretary for the Department of Corrections, 233 F.3d 1322 (11th Cir. 2000), a case involving "equitable tolling" based, in part, upon counsel's actions, the court held that while attorney "miscalculation of the limitations period or mistake is not a basis for equitable tolling," such tolling was available when the petitioner received misinformation from counsel as to the expiration of limitations.
Respondent cites Molo v. Johnson, 207 F.3d 773 (5th Cir. 2000) not as authority that § 2254(i) prohibits equitable tolling based on an ineffective assistance claim, but as authority that ineffective assistance of counsel does not constitute a "rare and exceptional" circumstance. Molo, however, is distinguishable in that it concerned a claim of ineffective assistance of appellate counsel and a contention that if the habeas action was time-barred he (Molo) would not have had any appellate review of his conviction. There was no allegation that the ineffectiveness of counsel contributed to or caused limitations to run.
To be entitled to equitable tolling however, DICKENS could not have acquiesced in and/or have turned a blind eye to counsel's actions, or inactions. DICKENS would still have had to be diligent and could not merely have sat on his rights. Coleman v. Johnson, 184 F.3d at 403, (holding that to be entitled to equitable tolling, an applicant must diligently pursue his § 2254 relief). Petitioner's present counsel filed an affidavit and have directed the Court to certain correspondence wherein petitioner DICKENS, even though represented by counsel, corresponded not only with such state habeas counsel, but with the court, seeking information with respect to the filing of his federal action and seeking information with respect to the status of his case. As the record presently stands, the majority of DICKENS' attempts to obtain information from his state habeas counsel were ignored. DICKENS' actions in this regard reflect he did not merely sit idle while limitations ran, but, to the extent possible, from the confines of death row, diligently pursued relief and diligently sought information from counsel.
In reaching this determination that DICKENS diligently pursued this matter, it must be considered within the context of the criminal justice system. Those familiar with the criminal justice system are familiar with criminal defendants who, even though represented by counsel, attempt or insist upon attempting to file pro se motions, attempt to correspond directly with the court, etc. The regular, and quite justified response to these pro se efforts is to instruct the defendant to proceed through his counsel. Therefore, it is quite understandable that DICKENS primarily sought information from his state habeas counsel and corresponded with state habeas counsel in an attempt to obtain information rather than by filing motions and attempting to proceed pro se, since counsel had been appointed to represent him.
Therefore, the undersigned finds that § 2254(i) does not preclude "equitable tolling" and that, under the fact and circumstances of this case, equitable tolling is warranted, based upon counsel's failure to adequately inform his client of the status of the case at the state habeas level and thereafter, and counsel's misinformation to his client.
It is the opinion of the undersigned that petitioner DICKENS however, is not entitled to equitable tolling for the period of time from the appointment motion filed May 8, 1997, until March 23, 1998, when the state habeas petition was filed. As set forth above, to be entitled to equitable tolling, the facts must present "rare and exceptional" circumstances. The fact that some time is needed for counsel who is appointed to a case to research and prepare a petition for filing, is not a "rare and exceptional" circumstance, but is quite common. In fact, it would be a "rare and exceptional" circumstance for a newly appointed attorney not to spend some reasonable period of time in the preparation of the habeas corpus petition. Therefore, it is the opinion of the undersigned that petitioner DICKENS is not entitled to any equitable tolling while his state habeas counsel was preparing the state petition for filing.
While it might be logical to allow statutory tolling for some reasonable period of time between appointment of counsel and the preparation of and filing of the petition to be allowed, such would require the AEDPA to be amended legislatively.
It is, however, the further finding of the undersigned that the time from June 10, 1999 when the fifteen (15) day period for state habeas counsel to file a motion seeking appointment of federal counsel, until July 21, 2000, when conflict free counsel were appointed by this Court, is subject to and should be equitably tolled and that "rare and exceptional" circumstances are present.
There is no evidence of any knowledge and participation by petitioner DICKENS in state habeas counsel's ineffectiveness. DICKENS was entitled to rely on counsel to seek appointment of federal counsel within fifteen (15) days after denial of his state habeas petition. He was certainly entitled to rely on counsel's representations that the motion for appointment of counsel had been filed in federal court on October 12, 1999. More importantly, by letter dated July 31, 1999, prior to limitations running, petitioner inquired of state habeas counsel about federal counsel, and about the AEDPA. Petitioner also wrote a letter to the state court, received August 5, 1999, prior to limitations running, inquiring of the status of appointment of counsel for the federal writ.
The limitations period should also be equitably tolled from July 21, 2000 until the date of the entry of an Order granting or denying respondent Johnson's August 14, 2000 motion to dismiss. 243 days ran before the state writ was filed and 15 more days ran after denial of the state writ up until the time for filing a motion for appointment of federal counsel lapsed. Therefore, a total of 258 days of the limitations period will have expired. Petitioner should be ordered to file his federal petition within sixty (60) days of the date this Report and Recommendation is adopted, if it is adopted, and respondent's motion to dismiss is denied. If the Report and Recommendation is not adopted, and respondent's motion to dismiss is granted, then the filing deadlines and calculations set forth above are moot.
V. RECOMMENDATION
For the reasons set forth above, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that respondent's Motion to Dismiss Federal Proceedings for Failure to Comply with the Statute of Limitations be DENIED and the federal proceedings initiated by petitioner JUSTIN WILEY DICKENS be allowed to proceed. It is the further recommendation of the undersigned that the period from June 10, 1999 to the date the Order is entered adopting this Report and Recommendation be "equitably tolled." Further, petitioner DICKENS should then be allowed to file his federal petition within sixty (60) days of the entry of such Order.
VI. INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card.
Any party may object to these proposed findings, conclusions, and recommendation within twelve (12) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b); 6(e). The twelfth day or due date would be on Sunday, March 25, 2001, thereby making any objections due by Monday, March 26, 2001. Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.