Opinion
CIVIL ACTION NO. 4:02-CV-911-A
May 7, 2003
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 pursuant to the provisions of 28 U.S.C. § 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 28 U.S.C. § 2254.
B. PARTIES
Petitioner Thanh Van Nguyen, TDCJ-ID #851768, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Teague, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1996, Nguyen was charged by indictment in state court with the attempted murder of Amy Yambao with a deadly weapon. (Clerk's R. at 3.) At trial, the state presented evidence that on the afternoon of February 13, 1994, Arlington police officers were called to the scene of a shooting in a shopping center. (5Rep. R. at 45.) The victim, Yambao, testified that after having lunch at the Kowloon Restaurant with various family members and friends, she came out of the restaurant and saw her ex-brother-in-law and a friend fighting a group of men. ( Id. at 108-09.) Her ex-husband and her son joined the melee. ( Id. at 107-09.) After the fighting stopped, Yambao found a gold necklace belonging to her ex-brother-in-law and returned it to him. ( Id. at 111.) They went to their respective cars, but, before they could leave, a car approached from the opposite direction and stopped. The two occupants of the other car, who had been involved in the altercation, exchanged words with them. ( Id. at 119.) As Yambao and her companions pulled away, one of the occupant's in the other car fired six to eight shots from a SKS assault rifle toward Yambao's car. ( Id. at 77, 118-21.) Yambao was wounded in the leg. ( Id.)
Nguyen became a suspect in the case, and a warrant was subsequently issued for Nguyen's arrest in connection with the shooting. (State's Ex. 1.) After his arrest, Nguyen was released on pretrial bond and absconded to the State of New York, where he was arrested on a fugitive warrant in 1998 following a traffic stop. (2Rep. R. at 13; 3Rep. R. at 7; 5Rep. R. at 10-16.) On the way to the station, Nguyen stated to the arresting officer, "Well, I guess it's time to be a man." (5Rep. R. at 16.) At the Irondequoit Police Department in New York, Nguyen gave a written statement to an investigator in which he admitted to firing the shots, but stated that he fired the shots to scare everyone away, that he fired the rifle without aiming, and that he wasn't trying to kill anyone. (5Rep. R. at 26-41; 7Rep. R. State's Ex. 2.)
Based on the evidence, a jury found Nguyen guilty of the charged offense on October 20, 1998, and assessed his punishment at fourteen years' confinement. (Clerk's R. at 143, 149.) Nguyen appealed his conviction, but the Second Court of Appeals affirmed the trial court's judgment on November 9, 2000. Nguyen v. State, No. 2-98-522-CR (Tex.App.-Fort Worth Nov. 9, 2000) (not designated for publication). On May 23, 2001, the Texas Court of Criminal Appeals refused Nguyen's petition for discretionary review. Nguyen v. State, No. 0075-01 (Tex.Crim.App. May 23, 2001) (not designated for publication).
Nguyen has filed two state applications for writ of habeas corpus, raising the issues presented. The first was dismissed by the Texas Court of Criminal Appeals because Nguyen's direct appeal was pending, and the second was denied without written order. Ex parte Nguyen, No. 48, 673-01 48, 673-03, at cover (Tex.Crim.App. Mar. 21, 2001 and Aug. 14, 2002, respectively) (not designated for publication). He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 22, 2002. 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
Nguyen's claims are, in most instances, vague and indecipherable. Nevertheless, by way of this petition, he appears to raise the following issues in fourteen grounds:
(1) The trial court abused its discretion by refusing to appoint a Vietnamese interpreter;
(2) The prosecution failed to disclose favorable evidence to the defense;
(3) His trial counsel rendered ineffective assistance;
(4) His confrontation rights were violated at trial;
(5) He was subjected to an illegal search and seizure in New York;
(6) He was not properly Mirandized in New York and his statements to police were the fruits of an illegal arrest, a violation of his right against self-incrimination, and the result of torture and coercion;
(7) His written statement was unverified;
(8) His equal protection rights were violated; and
(9) The prosecution failed to provide a "description of the alleged extraneous offense" and the victim's medical records and bills. (Pet. at 7-8 attach.; Mem. in Support at 5-16.)
E. RULE 5 STATEMENT
Cockrell believes that Nguyen has sufficiently exhausted his state remedies on the issues presented and, thus, does not move for dismissal on exhaustion grounds. (Resp't Answer at 3.) 28 U.S.C. § 2254(b)-(c).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"). Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court 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 Supreme Court of the United States 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. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. 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 the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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. Right to Interpreter
Under his first ground, Nguyen contends the trial court abused its discretion by refusing to appoint a Vietnamese interpreter during the state trial court proceedings because he does not fully understand, speak, read, or write the English language. (Pet. at 7; Pet'r Mem. in Support at 9-10; Pet'r Objection to Resp't Answer at 7-8.) He further contends that he wrote several letters to the trial court requesting an interpreter. (Pet'r Mem. in Support at 9.)
The failure to grant a motion to appoint an interpreter when a criminal defendant does not understand and speak the English language can violate Texas law and implicate both the due process and confrontation clauses of the Texas and United States Constitutions. See U.S. CONST. amends. 5, 14; TEX. CONST. art. 1, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.30(a) (Vernon Supp. 2003); Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Baltierra v. Texas, 586 S.W.2d 553, 557 (Tex.Crim.App. 1979). Based on the record, it appears that Nguyen does speak and understand the English language. In a pretrial hearing, Nguyen testified under oath in English that he understood his English-speaking attorney, understood the proceedings up to that point, and understood the English language so long as it was not spoken "too fast." (3Rep. R. at 46.) Moreover, at no point did Nguyen make a formal request or motion for an interpreter although he clearly had sufficient command of the English language to have done so. As noted by Cockrell, he only made a fleeting reference to his desire for appointment of an interpreter on one occasion in a letter to the trial court. (Clerk's R. at 92.) Under these circumstances, the record fails to support any allegation of a constitutional violation. See Rubio, 689 F.2d at 535.
Article 38.30(a) provides, in relevant part:
(a) When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. . . .
Nguyen sent many hand-written letters in English to the trial court before trial. (Clerk's R. at 11, 12, 64, 92, 94, 98, 101, 114, 115, 117.) He alleges the letters were written by "prison jail housed offenders" and merely copied by him, however no proof of his allegation is found in the record.
3. Brady Violation
Under his second ground, Nguyen contends the prosecution failed to disclose favorable evidence to the defense. (Pet. at 7; Pet'r Mem. in Support at 9-10; Pet'r Objection to Resp't Answer at 9-10.) Federal due process requires the prosecution to disclose material, exculpatory information to an accused. Brady v. Maryland, 373 U.S. 83, 87 (1963). Such non-disclosure is violative of due process if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682 (1985).
Nguyen contends the prosecution did not disclose the "charging witnesses misidentification" of him as the person who committed the offense. (Pet'r. Mem. in Support at 10.) He appears to argue that this evidence, in conjunction with the fact that none of the witnesses who testified at trial could identify the shooter, was favorable evidence that someone else committed the crime. (Pet'r Objection to Resp't Answer at 9.) Nguyen does not adequately state the factual basis for his argument under this ground — i.e., he does not state with specificity what favorable, material evidence was withheld. The record does reflect that, during the police investigation, several witnesses identified another Asian male, Hiep Ngo, as being involved in the incident. (2Rep. R. at 7-8.) However, none of the witnesses identified Ngo to the police as the shooter. Instead, upon police questioning, Ngo and several other persons with Ngo that day apparently identified Nguyen as the person who fired the rifle. (2Rep. R. at 7-12.) This information was divulged during the testimony of Jim Ford, a police investigator for the Arlington Police Department, in a pretrial hearing several days before Nguyen's trial began. Thus, even assuming the information was potentially favorable and material, a Brady violation does not occur where, as here, the information is known to the defense before trial. See West v. Johnson, 92 F.3d 1385, 1399 (9th Cir. 1996).
4. Ineffective Assistance of Counsel
Under his third, fifth, and sixth grounds, Nguyen contends his trial counsel was ineffective by (1) failing to investigate and contact an alibi witness, (2) failing to "advance all possible reasons why some of the state's key witness testimony was either perjured or inadmissible," and (3) failing to object to improper jury argument. (Pet. at 7 Attach.; Pet'r Mem. in Support at 10, -12; Pet'r Objection to Resp't Answer at 11-14.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688. To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688.
A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Where, as here, a petitioner's ineffective assistance claims have been reviewed on their merits under the Strickland standard and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of Strickland, or if the state courts' decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 123 S.Ct. 676 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 123 S.Ct. 625 (2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002).
In his third ground, Nguyen contends his trial counsel was ineffective by failing to investigate and contact an alibi witness. Nguyen does not, however, indicate the name of the alibi witness or what the witness would have testified to. In his reply to Cockrell's answer, Nguyen mentions the testimony of Hung Minh Nguyen, a witness called by the state during the punishment phase. (6Rep. R. at 47-70.) However, having reviewed the witnesses's testimony, it does not appear his testimony would have been favorable to the defense on the issue of identity during the guilt/innocence phase of trial.
Under his fifth ground, Nguyen contends trial counsel was ineffective by "failing to advance all possible reasons why some of the state's witnesses['] testimony was either perjured or inadmissible." (Pet. at Attach.; Pet'r Mem. in Support at 11; Pet'r Objection to Resp't Answer at 12-13.) This claim is vague and conclusory. Nguyen urges that counsel failed to object to testimony that counsel knew to be false, and he suggests that the testimony of the two New York police officers was perjured. He does not, however, specify what testimony of the officers' was objectionable or false or demonstrate that counsel was aware the testimony was false.
Under his sixth ground, Nguyen contends trial counsel was ineffective by failing to object to the prosecutor's improper comment during closing argument that "Vietnamese are not excepted [sic] in American Society." (Pet'r Mem. in Support at 12; Pet'r Objection to Resp't Answer at 13-14.) A review of the closing arguments in toto, however, does not reveal that either of the prosecutors made the complained of remark.
Having considered Nguyen's ineffective assistance claims in conjunction with the state court records, it does not appear that the state courts' adjudication of the claims resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard, or that it is based on an unreasonable determination of the facts in light of the evidence before the courts.
5. Right to Confrontation
Under his fourth ground, Nguyen contends his right to confrontation was violated by the use of his confession because he was denied the opportunity to "confront the two New York police officers who took the alleged confession." (Pet'r Mem. in Support at 11.) He argues that "the record shows the defense counsel was not able to cross-examine each witness." The record reflects, however, that defense counsel did cross-examine Officer Blake Hunt and Investigator Sam Soprano during the guilt/innocence phase without objection or limitation imposed by the trial court. (5Rep. R. at 18-20, 42.)
Nguyen also refers to the trial court's limitation of his cross-examination of Hung Minh Nguyen during the punishment phase. The record does reflect that during the punishment phase Nguyen's cross-examination of Hung Minh regarding the terms of his probation on an unrelated burglary charge was limited. (6Rep. R. at 58-59.) Specifically, Nguyen sought to question Hung Minh regarding whether he had a previous "deal" in the other case to testify against any codefendants in the case. ( Id. at 109-12.) Apparently, he sought to do so for the purposes of attacking Hung Minh's credibility and/or establishing his motive for testifying favorably for the state. It is difficult, however, to perceive the relevance of this information to Nguyen's case or how exclusion of the evidence caused him harm. See Delaware v. Van Arsdall, 475 U.S. 673, 683-84 (1986) (error subject to Chapman harmless-error analysis; factors to consider include importance of witness's testimony to prosecution's case, whether testimony was cumulative, presence or absence of evidence corroborating or contradicting testimony of witness on material points, extent of cross-examination otherwise permitted, and overall strength of prosecution's case). Hung Minh testified that he had no such "deal" in Nguyen's case and that the disposition of the other case had no bearing on his testimony in Nguyen's case. (6Rep. R. at 60.) On this record, Nguyen fails to raise confrontation clause error.
6. Illegal Search and Seizure
Under his seventh, eighth, ninth, and twelfth grounds, Nguyen contends he was subjected to an "illegal search and seizure" because Irondequoit Police Officer Blake Hunt did not inform him of his constitutional rights under Miranda upon his arrest, thus tainting all the evidence obtained thereafter under the "fruits" doctrine. (Pet. at Attach.; Pet'r Mem. in Support at 12.) At the hearing on Nguyen's motion to suppress, Officer Hunt testified that he stopped Nguyen for a traffic violation in Irondequoit, New York, and, during his investigation, he determined that Nguyen had a fugitive warrant for his arrest out of Arlington, Texas. (3Rep. R. at 6-10.) Officer Hunt arrested Nguyen on the basis of the Texas fugitive warrant, but did not give him the Miranda warnings. ( Id. at 12.) On the way to the police station, Nguyen stated something to the effect that "I guess it's time I be a man and face up to this." ( Id. at 9.) At the police station, Sam Soprano, a criminal investigator with the Irondequoit Police Department, advised Nguyen of his Miranda rights and conducted an interview, which resulted in oral and written statements from Nguyen. ( Id. at 20-32; 7Rep. R. at State's Exs. 1 2.)
To the extent Nguyen attempts to raise a Fourth Amendment claim that his oral and written statements to law enforcement officers were the result of an unlawful arrest subject to the "fruits" doctrine, his claim fails. Where a state has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search and seizure. Stone v. Powell, 428 U.S. 465, 489-95 (1976). Nguyen was given a full and fair hearing on his motion to suppress in the state trial court, and he raised his claims in his state writ application. In each instance, the state courts considered and rejected his arguments under these grounds. Thus, Nguyen received a full and fair chance to litigate his Fourth Amendment claim in the state courts, and Stone bars relitigation of the issue here.
To the extent Nguyen attempts to raise a claim under the Miranda exclusionary rule, which serves the Fifth Amendment prohibition against compulsory self-incrimination, his claim also fails. See Oregon v. Elstad, 470 U.S. 298, 306 (1985). The safeguards prescribed by Miranda protect a suspect against self-incrimination stemming from custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Voluntary statements, not in response to custodial interrogation, are not barred by the Fifth Amendment and, therefore, are not subject to the Miranda warnings. See id.; United States v. Gonzales, 121 F.3d 928, 939-40 (5th Cir. 1997); United States v. Sanchez, 449 F.2d 204, 209 (5th Cir. 1971). Nothing in the record reflects that Nguyen was exposed to custodial interrogation at the scene of the stop or in route to the police station by Officer Hunt following his arrest. See Miranda, 384 U.S. at 444 (defining "custodial interrogation" as "questioning initiated by law enforcement officers after a person is taken into custody . . ."). Officer Hunt specifically testified that Nguyen's oral statement to him was not in response to any question or comment on his part, and his testimony was undisputed. (3Rep. R. at 9, 44-45; 5Rep. R. at 15.)
Furthermore, the record supports the state courts' determination that Nguyen's oral and written statements to Investigator Soprano at the Irondequoit Police Department were made knowingly, intelligently, and voluntarily after having been advised of his Miranda rights. (Clerk's R. at 158.) Nguyen's asserts that his waiver of rights was invalid because he did not receive the Miranda warnings in Vietnamese and because he was "told after Miranda warning that if you want a lawyer you can't cooperate with officers." As previously noted, however, Nguyen clearly had sufficient understanding of the English language to make a knowing and voluntary decision to waive his rights, and there is no evidence of coercion in the record. Soprano denied coercing or threatening Nguyen in anyway, directly or indirectly promising him any type of reward or advantage if he made a statement, or denying him any type of necessity to do so. (3Rep. R. at 26.) Moreover, Nguyen's written statement to police expressly states that he gave the statement of his own free will and that no threats or promises were made by Soprano or any other member of the Irondequoit Police Department. (7Rep. R. at State's Ex. 2.)
7. Nguyen's Confession
Under his tenth ground, Nguyen contends his "second statement," presumably his written statement, to Soprano was the result of coercion and brutality. He appears to argue that Soprano obtained his statement "by means of torture, harassment, and unsafe conditions of being housed with serious violent criminals." (Pet'r Mem. in Support at 14-15; Pet'r Objection to Resp't Answer at 18.) The record, however, is devoid of any proof regarding his allegations. Without substantiation in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue in his pro se petition to be of probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). The state trial court expressly found that Nguyen's statement was given "knowingly, freely and voluntarily, without persuasion, coercion, threats, or promise of reward of any kind." (Clerk's R. at 158.) Nguyen's unsubstantiated allegations are insufficient to rebut the presumption of correctness of the state court's determination of the issue. Babb v. Johnson, 61 F. Supp.2d 604, 607 (S.D. Tex. 1999); see also Hill, 210 F.3d at 485; Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995).
Under his eleventh ground, Nguyen contends that his written statement is invalid on its face because it does not comply with the requirements of article 38.22 of the Texas Code of Criminal Procedure and is unverified. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 1979). Cockrell correctly notes, however, that the instant claim merely raises an alleged violation of state law and does not raise a constitutional issue. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998). Errors of state law do not constitute an independent basis for federal habeas relief. Narvaiz, 134 F.3d at 695. Furthermore, the state trial court expressly found that Nguyen's written statement was in substantial compliance with the requirements and provisions of Miranda and article 38.22, and Nguyen has not met his burden to rebut the presumptive correctness of this finding. (Clerk's R. at 158.) See 28 U.S.C. § 2254(e)(1).
8. Equal Protection
Under his thirteenth ground, Nguyen contends his rights under the equal protection clause were violated based on prejudicial remarks made by the prosecutor, the trial court's refusal to appoint him a Vietnamese interpreter, and the high bond amount set in his cases. (Pet'r Mem. in Support at 16; Pet'r Objection to Resp't Answer at 21.) Nguyen alleges the prosecutor made a prejudicial remark that "Vietnamese are not excepted [sic] in American society," however, as noted above, the record does not reflect that either of the prosecutors made the remark during jury argument. Nguyen also directs the court to the following argument during the punishment phase of trial:
This punishment time is the time you're allowed to use your emotions. It's not just about the facts and answering the questions. It's the time when you get to decide what a crime is worth — what it's worth to Tarrant County, what it's worth to the citizens of Tarrant County, to send a message that this isn't going to be tolerated. That's one purpose of punishment.
The other purpose of punishment is to tell this defendant, who has been given the privilege of being a part of our country, that when you do something like he did on February 13th, 1994, that it's not going to be tolerated. (6Rep. R. at 89.)
This remark, however, could have been reasonably viewed as merely a plea for law enforcement. See, e.g., Walthall v. Texas, 594 S.W.2d 74, 82 (Tex.Crim.App. 1980).
As to the remainder of his claims under this ground, Nguyen fails to demonstrate that similarly situated non-Vietnamese defendants receive more favorable treatment than he. A claimant who alleges an equal protection violation has the burden of proof. Mayabb v. Johnson, 168 F.3d 863, 870 (5th Cir. 1999). Nguyen makes no attempt to prove his assertion that he was denied an interpreter or that his bond was set based on his ethnicity.
9. Access to Evidence
In his fourteenth ground, Nguyen contends the state failed to provide a description of the alleged extraneous offense and the victim's medical records and bills. (Pet'r. Mem. in Support at 16; Pet'r Objection to Resp't Answer at 22.) As to his first complaint, Nguyen refers to evidence regarding his 1987 arrest for unlawfully carrying a weapon. (6Rep. R. at 14-18.) The state, however, did provide written notice that it intended to use evidence of the 1987 arrest before trial. (Clerk's R. at 125.) See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3 (Vernon Supp. 2003); TEX. R. EVID. 404(b). Furthermore, the argument was made during the punishment phase when evidence of an extraneous crime or bad act is relevant as a matter of state law. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3.
As to his second complaint, Nguyen fails to allege with specificity how the victim's medical records and bills are relevant to a pertinent issue in the case. In his objection to Cockrell's answer, Nguyen appears to suggest that the records may have been used in cross-examination, used to contradict statements by the victim, or used to refute the element of "serious bodily injury." (Pet'r Objection to Resp't Answer at 22.) However, this does not adequately state a factual or legal basis for relief.
10. Summary
In conclusion, the record supports the state courts' determination of the issues presented in this federal proceeding. The state courts' determination is not contrary to or involve an unreasonable application of federal law in light of the record as a whole and is entitled to deference and the presumption of correctness.
II. RECOMMENDATION
Nguyen's petition for writ of habeas corpus should be denied.
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 in the United States District Court 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 28, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 28, 2003, to serve and file 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, a 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, be and hereby is returned to the docket of the United States District Judge.