Opinion
Civil Action No. 4:00-CV-1811-Y
September 25, 2001
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Richard William Payne, TDCJ-ID #620984, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Connally Unit in Kenedy, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Payne was charged with aggravated sexual assault of a child under 14, indecency with a child by contact, and sexual performance by a child. (State Habeas R. at 138, 153.) Both offenses were alleged to have been committed on or about June 30, 1989. ( Id.) On May 22, 1992, a jury found him guilty of aggravated sexual assault of a child and sexual performance by a child and assessed punishment at 65 years' confinement and 20 years' confinement, respectively. (345 Clerk R. at 12; 344 Clerk R. at 9.) Payne appealed. The Second District Court of Appeals reversed the judgments and remanded them for a new trial. Payne v. State, Nos. 2-92-288 291-CR (Tex.App.-Fort Worth Dec. 15, 1993, no pet.) (not designated for publication). (345 Clerk R. at 13; 344 Clerk R. at 10.) Payne was released on bond pending retrial. (3 Rep. R. at 136-37, 139; 345 Clerk R. at 25; 344 Clerk R. at 22.) Payne did not appear for trial on July 10, 1995. (3 Rep. R. at 117.) On March 26, 1996, Payne was apprehended and arrested after being pulled over for a traffic violation. ( Id. at 119-31.)
From the record before this court, it is unclear what the disposition of the indecency charge was.
Before the retrial, Payne elected to have the judge assess guilt and punishment. (345 Clerk R. at 72; 344 Clerk R. at 70.) On September 30, 1997, the trial court found Payne guilty and sentenced him to life confinement on the aggravated-sexual-assault charge, 15 years' confinement on the indecency charge, and 20 years' confinement on the sexual-performance charge. (State Habeas R. at 140, 156.) The Tenth District Court of Appeals affirmed the judgments, and the Texas Court of Criminal Appeals refused Payne's petitions for discretionary review. Payne v. State, Nos. 10-97-344-45-CR (Tex.App.-Waco Mar. 3, 1999, pets. ref'd) (not designated for publication).
The appeal was decided by the Tenth District Court of Appeals because the Texas Supreme Court transferred the appeal from the Second District Court of Appeals. (344 Clerk R. at 100-05.)
Payne filed a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Payne, No. 45, 701-01 (Tex.Crim.App. July 12, 2000) (not designated for publication). Payne filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 10, 2000. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Payne raises twelve issues:
1. Texas Code of Criminal Procedure article 38.37 is unconstitutional.
2. Evidence that he fled from the jurisdiction of the trial court while out on bond, i.e., that he jumped bail, was erroneously admitted.
3. The bail-jumping indictment should have been dismissed as untimely.
4. The trial judge should have recused himself.
5. Prosecutorial misconduct.
6. The sexual-misconduct indictment was void because it was brought after the statute of limitations had expired.
7. The victim's testimony was perjurious.
8. The trial court erroneously denied counsel's motion to quash the indictments.
9. Texas Penal Code section 22.021 is unconstitutional.
10. He was wrongly denied 17 months' pretrial confinement credit.
11. Trial counsel was constitutionally ineffective.
12. Appellate counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell believes Payne has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA's compelled deference to decisions of state courts is now familiar. Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.), cert. denied, 121 S.Ct. 2001 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Unconstitutional State Statutes
In two separate arguments, Payne asserts that his convictions are void because two state statutes are unconstitutional. (Federal Pet. at 14-15, 23-25, 41-42.) He argues that the article providing for admission of extraneous acts or offenses against the victim is unconstitutional because it discriminates against a certain class of offenders, circumvents evidentiary rules, is illegally retroactive, is vague and overbroad, and is an ex post facto law. ( Id. at 14-15, 23-25.) However, Payne directs his arguments to the bail-jumping evidence that was admitted. ( Id. at 13-15, 24.) Article 38.37 deals solely with the admission of other crimes, wrongs, or acts against the victim. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2 (Vernon Supp. 2001). It expressly does not apply to the admission of extraneous crimes, wrongs, or acts in general. Id. art. 38.37, § 4. Thus, article 38.37 is not implicated in Payne's case, and it would be inappropriate to address his constitutionality argument.
Payne next argues that the aggravated-sexual-assault statute — Penal Code section 22.021 — is unconstitutionally overbroad and vague because it allows "contact" to be prosecuted as an aggravated assault, i.e., as an act of violence. ( Id. at 41-43.) However, the aggravating element of the offense in this case is the age of the victim, not the nomenclature used to describe the prohibited sexual act. See Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5, § 22.0211, 2001 Tex. Sess. Law Serv. 842, 847-48. Further, this statute has been found constitutional by Texas state courts. E.g., Lewis v. State, 984 S.W.2d 732, 735-36 (Tex.App.-Fort Worth 1998, pet. ref'd); In re C.O.S., 961 S.W.2d 360, 364 (Tex.App.-Houston list Dist.] 1997), aff'd on other grounds, 988 S.W.2d 760 (Tex. 1999). This construction is binding on this court. Ferguson v. Estelle, 718 F.2d 730, 733 n. 5 (5th Cir. 1983).
3. Perjured Testimony
Payne asserts that his constitutional rights were violated when the victim's perjured testimony was admitted. (Federal Pet. at 31-37.) Specifically, he argues that the victim's perjury was a result of improper interrogations by the police, which caused the victim trauma and false-memory syndrome.
To run afoul of the Due Process Clause, a petitioner must show that the State knowingly presented materially false evidence to the jury or allowed untrue testimony to go uncorrected. Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied, 519 U.S. 995 (1996); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). To obtain relief, the petitioner must show that (1) the testimony was actually false, (2) the state knew it was false and (3) the testimony was material. Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993). Payne has not shown that the victim's testimony was actually false. There is nothing in the record, including the questioning officer's testimony, that shows the victim was so improperly interrogated that he lied about the sexual assaults. (3 Rep. R. at 93-115.)
4. State Law Errors
Payne argues that extraneous-offense evidence was erroneously admitted, the sexual-performance indictment was brought outside the applicable statute of limitations, and the trial court erred by not quashing the indictments because a specific date was not alleged. (Federal Pet. at 18-21, 30, 38-40.)
In habeas actions, federal courts do not sit to review the mere admissibility of evidence under state law or errors under state law. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S. 1118 (1999); Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir.), cert. denied, 502 U.S. 875 (1991). Payne's claims only raise questions regarding Texas law. Yohey v. Collins, 985 F.2d 222, 226, 228-29 (5th Cir. 1993). Thus, these claims provide no basis for federal habeas corpus relief Dickerson, 932 F.2d at 1145.
5. Bail-Jumping Indictment
Payne asserts that the indictment brought against him after he jumped bail should have been dismissed because it was untimely presented. (Federal Pet. at 17.) For this court to have subject-matter jurisdiction over a claim, the petitioner must be "in custody" pursuant to the conviction he challenges. Maleng v. Cook, 490 U.S. 488, 492 (1989). The bail-jumping charge was dismissed; thus, Payne is not in custody under that charge. (Resp't Answer at Ex. B; Resp't Advisory at Ex. A.) This court has no jurisdiction over this claim.
6. Recusal
Payne next asserts that the trial judge should have recused himself because he "was evidently caught up in emotionally contagious hate by his extraordinary actions such as assessing [Payne] a higher penalty on this remanded trial . . . . which points to judicial vindictiveness." (Federal Pet. at 22.) There is nothing in the record before this court, including the record on state habeas, to support Payne's argument. This conclusory allegation is insufficient to warrant federal habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). However, the claim also fails on the merits because these facts are insufficient to require a judicial recusal. United States v. Mizell, 88 F.3d 288, 298-99 (5th Cir.), cert. denied, 519 U.S. 1046 (1996); Stafford v. State, 948 S.W.2d 921, 925 (Tex.App.-Texarkana 1997, pet. ref'd).
7. Prosecutorial Misconduct
Payne next argues that the State committed misconduct in three instances. (Federal Pet. at 26-29.) He first argues that after he refused the State's plea-bargain offer, the State, "out of vindictiveness," added the sexual-performance indictment. The normal give-and-take of plea bargaining does not raise the specter of retaliation. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). In fact, the decision whether or not to prosecute and what charges to bring rests entirely in the prosecutor's discretion. Id. at 364. Changes that occur in a charging decision in the context of plea negotiation are not proper indicators of improper vindictiveness. United States v. Goodwin, 457 U.S. 368, 379-80 (1982). There is no evidence in the record that the State added the sexual-performance indictment based on Payne's refusal. See United States v. Goodwin, 656 F.2d 1132, 1135 (5th Cir. 1981) (holding conclusory allegations of prosecutorial vindictiveness insufficient to merit review). Even if there were such evidence, it would be insufficient to demonstrate vindictiveness. Bordenkircher, 434 U.S. at 364; Goodwin, 457 U.S. at 382-83.
Next, Payne asserts that prosecutorial misconduct occurred when the police conducted a "sting operation" and improperly interrogated the victim. There is no evidence in the record to support either of these contentions. As such, they are conclusory and do not merit relief. Ross, 694 F.2d at 1011-12.
8. Confinement Credit
Payne contends that he was denied 17 months' pretrial confinement credit. (Federal Pet. at 43.) There is no federal constitutional right to credit for presentence jail time on Payne's life sentence. Jackson v. Alabama, 530 F.2d 1231, 1235 (5th Cir. 1976). Accordingly, Payne has failed to prove that he has been denied a constitutionally protected interest.
9. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91. Even if in retrospect the strategy to pursue one line of defense over another appears to have been wrong, the decision will be held ineffective only if it was so patently unreasonable that no competent attorney would have chosen it. Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983), cert. denied, 464 U.S. 1063 (1984). Accordingly, tactical or strategic choices by counsel cannot support a collateral claim of ineffective assistance. Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir.), cert. denied, 522 U.S. 944 (1997).
Payne's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal court cannot grant habeas relief unless the state courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
a. Trial counsel
Payne asserts that trial counsel was constitutionally ineffective because he:
1. did not communicate with Payne and give him copies of court records;
2. did not object to the State's emotion during jury argument;
3. wrongly advised Payne to be tried by the court and not by a jury;
4. incorrectly told Payne an expert on false-memory syndrome should not be used;
5. did not object to the State's failure to allege a specific date;
6. did not have the judge view the entire videotape of the victim;
7. failed to seek an accomplice-witness instruction; and
8. committed cumulative error.
For the following reasons, Payne has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Payne asserts that trial counsel was ineffective for failing to communicate and give Payne copies of the indictments, jail records, the State's appellate briefs, and other court records. (Federal Pet. at 7A, 10-11.) In response to Payne's state habeas application, trial counsel averred that he always communicated and provided Payne with all documents:
I sent Mr. Payne multiple copies of every opinion, brief, state's brief petitions for discretionary review, and responses to pdrs that I possessed. Mr. Payne is flatly misrepresenting his situation to the court on this point. For the past five to six years I always provided Richard Payne with the documents he requested. Period. (State Habeas R. at 124.)
The trial court explicitly credited counsel's version of events, which is entitled to a presumption of correctness. (State Habeas R. at 132-33, 137.) Payne has failed to rebut this presumption with clear-and-convincing evidence and, thus, is not entitled to relief
Next, Payne argues that counsel should have objected to the prosecutor's "phony tremulous voice" during jury argument. (Federal Pet. at 7A.) There is no evidence in the record to support Payne's contention and, certainly, no evidence that the prosecutor's emotion would violate Payne's due-process rights. This argument is conclusory and cannot merit relief Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982), appeal dismissed and cert. denied, 461 U.S. 951 (1983). Further, the decision to not object to the State's jury argument is a matter of trial strategy. Drew v. Collins, 964 F.2d 411, 423 (5th Cir. 1992) cert. denied, 509 U.S. 925 (1993). Thus, Payne cannot show that counsel was ineffective for failing to object to the argument. Cf, e.g., Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (holding counsel not deficient for failing to make frivolous objection to correct statement regarding Texas law), cert. denied, 525 U.S. 1174 (1999); Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
Payne argues that counsel wrongly advised him to be tried by the court and not by a jury. (Federal Pet. at 7A-8.) The decision to recommend a bench trial is a strategic decision that this court will not second-guess. Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.), cert. denied, 493 U.S. 831 (1989). Counsel fully advised Payne of his options, and Payne voluntarily chose to have a bench trial:
Mr. Payne has complained that I insisted how the cases should be tried (joined or separate; jury or court) and that I coerced him into going to the judge for punishment. Mr. Payne is incorrect.
I fully advised Mr. Payne on numerous occasions about his choices regarding whether to try his cases together and whether he should go to the court or jury for punishment. Mr. Payne also knew he had a right to a jury trial in all the cases.
At all times, Richard Payne made independent decisions regarding how these cases should be tried. Mr. Payne wanted separate trials. Second, Mr. Payne did not want a jury to set his punishment as he had an absolute fear of what a jury would do to him. (State Habeas R. at 124.)
The trial court found that the decision to waive a jury trial was Payne's. (State Habeas R. at 132-33, 137.) This determination is presumed correct, and Payne has failed to overcome the presumption by clear-and-convincing evidence. This court will not second-guess counsel's strategic advice.
Payne argues that counsel should not have advised against using an expert witness regarding false-memory syndrome in sexual-assault victims. (Federal Pet. at 8, 11.) Specifically, he contends that Elizabeth Loftus, who testified regarding false-memory syndrome in a California abuse trial, should have been called as a witness at Payne's trial. Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001). For Payne to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witness would have testified at trial. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Payne has failed to carry his burden to show that Loftus would have been willing to testify at the trial if called or what she would have testified to regarding Payne and the victim. Accordingly, Payne has failed to prove the requisite prejudice arising from counsel's failure.
Payne next attacks counsel's failure to object when the State did not allege a specific offense date in the indictments. (Federal Pet. at 9-10.) However, the record reflects that counsel did object to the indictments on this basis. (344 Clerk R. at 80; 345 Clerk R. at 82; 3 Rep. R. at 21-25.) Counsel cannot be held deficient. See Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983).
Payne asserts that counsel failed to "require" that the judge view the entire videotape made of the victim because "it contained no evidence of aggravated sexual assault." (Federal Pet. at 13.) The videotape of the victim was introduced at the punishment phase of trial and the trial court viewed part of the tape. (4 Rep. R. at 14-16, 18-19.) Payne has offered no evidence to show that he would not have received a life sentence had the judge viewed the entire tape.
Payne also argues that trial counsel should have sought an accomplice-witness instruction in the jury charge. (Federal Pet. at 37.) Contrary to Payne's assertions, the child victim of a sexual assault cannot be classified as an accomplice; thus, Payne was not entitled to such an instruction. Scoggan v. State, 799 S.W.2d 679, 681 (Tex.Crim.App. 1990). Counsel was not deficient. Marshall, 835 F.2d at 1103.
b. Appellate counsel
Payne argues appellate counsel was ineffective for the following reasons:
1. failing to argue that extraneous evidence of bail jumping was erroneously admitted;
2. failing to argue that the victim's testimony should have been subject to the accomplice-witness rule; and
3. it was a conflict of interest to represent Payne as trial counsel and appellate counsel.
Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). For the following reasons, Payne has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Payne asserts that counsel should have argued on appeal that the bail-jumping evidence was erroneously admitted under article 38.37. (Federal Pet. at 7A, 12.) As discussed above in section I.F.2., article 38.37 does not pertain to the admission of the bail-jumping evidence. Counsel cannot be held deficient for failing to raise a meritless argument on appeal. E.g., Jones v. Barnes, 463 U.S. 745, 751-53 (1983); Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); Cantu v. Collins, 967 F.2d 1006, 1017 (5th Cir. 1992), cert. denied, 509 U.S. 926 (1993); Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992). Likewise, Payne's contention that counsel should have argued that the victim was an accomplice is meritless and cannot support a deficient performance finding. (Federal Pet. at 8-9.)
Payne next argues that counsel's representation of him at trial and on appeal constituted a conflict of interest. ( Id. at 12.) Payne has failed to argue or demonstrate an actual conflict that adversely affected counsel's performance on appeal; thus, this claim must fail. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
c. Cumulative error
Payne argues that the cumulative effect of counsel's errors rendered his conviction unconstitutional. (Federal Pet. at 11.) Federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law, (2) the errors were not procedurally defaulted, and (3) the errors so infected the entire trial that the resulting conviction violates due process. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en banc). However, a habeas petition may not just complain of unfavorable rulings or events in an effort to cumulate errors. Id. at 1458. As noted above, Payne's claims regarding counsel's representation are either meritless or do not rise to the federal constitutional dimension necessary to warrant cumulative-error analysis. As such, Payne has presented nothing to cumulate. Yohey, 985 F.2d at 229.
10. Summary
In sum, Payne is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Payne was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Payne's petition for writ of habeas corpus should be denied.
This court would like to thank counsel for Cockrell for the well written and helpful answer filed in this case.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until October 16, 2001. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass', 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until October 16, 2001 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.