Opinion
CIVIL ACTION NO. 4:03-CV-036-Y.
June 11, 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 under 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 Larry Lee Windham, TDCJ-ID #925076, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Allred Unit in Iowa Park, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Windham was arrested for selling methamphetamine to Pamela Newman, who was a police informant. He was indicted for two counts of delivery of more than one gram but less than four grams of methamphetamine on November 7, 1998 and December 7, 1998 and for one count of delivery of less than one gram of methamphetamine on May 4, 1999. (164 Clerk R. at 1; 165 Clerk R. at 1; 166 Clerk R. at 167.) The three indictments were tried together. (4 Rep. R. at 5.) A jury found Windham guilty of the three offenses and assessed his punishment at two life sentences and one twenty-year sentence, to be served concurrently. (164 Clerk R. at 38-39; 165 Clerk R. at 38-39; 166 Clerk R. at 42-43.)
The Eleventh District Court of Appeals affirmed the trial court's judgments, and the Texas Court of Criminal Appeals refused Windham's petitions for discretionary review. Windham v. State, Nos. 11-00-164-66-CR (Tex.App.-Eastland June 14,2001, pets. ref'd) (not designated for publication). Windham filed three applications for state habeas corpus relief, challenging his three convictions, which the Court of Criminal Appeals denied without written order. Ex parte Windham, Nos. 18,276-02, -03, -04 (Tex.Crim.App. Oct. 23, 2002) (not designated for publication). Windham 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 January 11, 2003. 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). He filed an amended petition on February 24, 2003.
Windham's first state habeas corpus application attacked the application of good-time credits to his 1987 theft conviction. Ex parte Windham, No. 18,276-01 (Tex.Crim.App. Sept. 28, 1988) (not designated for publication).
D. ISSUES
Windham raises ten issues in his amended petition:
1. His due-process rights were violated because the prosecutor had previously represented him on a conviction that was used to enhance the current convictions.
2. He was denied the Sixth Amendment right to confront and cross-examine Newman.
3. He was denied the Sixth Amendment right to confront and cross-examine a juror who gave testimony against Windham to the other jurors.
4. His due-process rights were violated by the trial court's repeated actions showing judicial prejudice.
5. The State suppressed exculpatory evidence.
6. The evidence was legally insufficient.
7. The indictment contained a constructive amendment or variance, which violated due process.
8. The indictment did not provide Windham notice of the charges against him.
9. Trial counsel was constitutionally ineffective.
10. Appellate counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell argues that five of Windham's claims have not been exhausted and asserts that they have been procedurally defaulted; however, Cockrell believes that Windham's remaining allegations have been properly exhausted.F. DISCUSSION 1. Exhaustion and Procedural Default
Cockrell argues that Windham has failed to exhaust the following claims: (1) he was denied the right to confront Newman about the fact that she traded sex for drugs, (2) the State suppressed exculpatory evidence, (3) the indictment did not provide adequate notice of the charges against him, (4) trial counsel was constitutionally ineffective, and (5) appellate counsel was constitutionally ineffective. Indeed, Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 160 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
In his state habeas corpus application, Windham raised his arguments that his cross-examination of Newman about trading sex for drugs should have been allowed, rendering the trial court's denial a violation of his due-process rights. (State Habeas Corpus Br. at III, 49, 60-61.) Thus, this claim was fairly presented and is properly exhausted.
But Windham failed to raise the remaining four issues in either his petition for discretionary review on direct appeal or in his state application for habeas corpus relief. Windham admits these claims are unexhausted. (Pet'r Answer to Resp't Exhaust. Allegations at 11, 16, 20.) Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, Windham cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191,195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Finley, 243 F.3d at 219-20.
Windham asserts that these claims are not procedurally barred because to bar the claims would result in a miscarriage of justice. (Pet'r Answer to Resp't Exhaust. Allegations at 12, 16, 20.) This miscarriage-of-justice argument is necessarily a procedural claim of actual innocence. Schlup v. Delo, 513 U.S. 298, 314 (1995). In other words, this claim of innocence is not an independent constitutional claim, but is a "gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, 506 U.S. 390, 404 (1993). Windham must support his miscarriage-of-justice claim with new evidence of his actual innocence. Schlup, 513 U.S. at 316, 324, 329-30.
Windham does not attempt to excuse his default and, thus, cannot meet the cause-and-prejudice test. Coleman, 501 U.S. at 750.
Windham, however, never argues that he is actually innocent of the offenses. He merely reasserts his arguments that there were constitutional errors in the State's case to support his claim that his unexhausted allegations should be addressed. (Pet'r Answer to Resp't Exhaust. Allegations at 12-16, 17-19, 20-30.) He also fails to proffer any new evidence that was not admitted at trial to show his actual innocence. ( Id.) Accordingly, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
2. Legal Standard for Granting Habeas Corpus Relief
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. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002), cert. denied, 123 S.Ct. 963 (2003).
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).
3. Conflict of Interest
Windham argues that his due-process rights were violated because the prosecutor, Jerry Ray, had previously represented Windham when he was convicted of possession of methamphetamine in 1990. (Federal Pet. at 7-7A; Pet'r Reply at 4-6.) This conviction was used to enhance the punishments in the current three convictions. However, the record does not suggest that Ray obtained sensitive information in his prior representation that could have been used against Windham in these cases. (2 Rep. R. at 7-8, 17-18.) Ray merely used the fact of Windham's previous conviction for enhancement, which was a matter of public record. Ray's representation did not violate Windham's due-process rights. Havens v. Indiana, 793 F.2d 143, 144-46 (7th Cir.), cert. denied, 479 U.S. 935 (1986); Wright v. Cowan, 149 F. Supp.2d 523, 541-42 (C.D. Ill. 2001), aff'd sub nom. Wright v. Walls, 288 F.3d 937 (7th Cir.), cert. denied, 123 S.Ct. 486 (2002); cf. Canady v. State, 100 S.W.3d 28, 31-32 (Tex.App.-Waco 2002, no pet.) (applying state law and finding no conflict of interest under similar circumstances).
As argued by Cockrell, even if Windham's due-process rights had been violated by Ray's representation, habeas relief would be Teague-barred. Teague v. Lane, 489 U.S. 288, 310 (1989); Vega v. Johnson, 149 F.3d 354, 357-59 (5th Cir. 1998), cert. denied, 525 U.S. 1119 (1999).
4. Confrontation Rights
Windham argues that he was denied the right to confront and cross-examine the State's main witness, Newman, and a juror, Terry Mahaney. The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The guarantees of a face-to-face confrontation with witnesses at trial and of the right to cross-examine those witnesses serve to protect the integrity of the fact-finding process in criminal trials. Maryland v. Craig, 497 U.S. 836, 850 (1990). A complaint that the trial court unduly restricted cross-examination of the State's witness is a mixed question of fact and law that on federal habeas review is subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Wilkerson v. Cain, 233 F.3d 886, 890-92 (5th Cir. 2000). Thus, to be entitled to relief on a claim regarding violation of his Sixth Amendment right to confrontation, Windham must show not only that the right was in fact violated, but also that "there is `more than a mere reasonable possibility that [the error] contributed to the verdict.'" Wilkerson, 233 F.3d at 892 (quoting Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (emphasis omitted)).a. Newman
At trial, Newman testified that she bought methamphetamine from Windham and was the main witness as to the facts of the offenses. Windham argues that he was unconstitutionally denied the right to cross-examine Newman about the fact that she had an arrangement that she would receive leniency on her pending charges in exchange for her testimony against Windham. (Federal Pet. at 7-7C; Pet'r Reply at 6-10.) However, Windham questioned Newman about any deals, which she and the prosecutor denied. (5 Rep. R. at 330-32.) Windham also argues that he should have been allowed to question Newman about her past sexual relationship with him and his ultimate rejection of her. (Federal Pet. at 7-7C; Pet'r Reply at 10-12.) Windham questioned Newman about her past relationship with him, and she denied ever having a sexual relationship with him. (5 Rep. R. at 281-82, 298.) Windham also contends that he should have been allowed to question Newman regarding her history of trading sex for drugs. (Federal Pet. at 7-7B.) There is no evidence in the record that Windham tried to question Newman on this subject and was stopped by the trial court. In fact, Windham questioned Newman about her past relationship with other people she bought drugs from, and she denied that she had sex with any of them. (5 Rep. R. at 328.) These claims are without merit.
Windham also asserts that he was unconstitutionally denied the right to cross-examine Newman as to whether she had lived with Carlos Wallace. (Federal Pet. at 7-7C; Pet'r Reply at 12.) However, Newman testified on cross-examination that she had not lived with Wallace. (5 Rep. R. at 307.) Further, the Eleventh District Court of Appeals held that this claim was not preserved because Windham failed to make a bill of exception or an offer of proof showing what further testimony would have shown. Windham, Nos. 11-00-164-66-CR, slip ops. at 4-5 (citing TEX. R. APP. P. 33.2 TEX. R. EVID. 103). In refusing Windham's petitions for discretionary review, the Court of Criminal Appeals implicitly reached the same conclusion. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (holding when last reasoned opinion explicitly imposes procedural default, later decision will not be seen as silently disregarding the bar). The preservation-of-error rule is an adequate and independent state ground that procedurally bars federal habeas review of a petitioner's claims. Wheat v. Johnson, 238 F.3d 357, 360 (5th Cir.), cert. denied, 532 U.S. 1070 (2001); Sharp v. Johnson, 107 F.3d 282, 285-86 (5th Cir. 1997); Nichols v. Scott, 69 F.3d 1255, 1280 n. 48 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996). Thus, this claim is without merit and, further, is barred from this court's review.
Apparently at some point during the trial, the State mentioned that Newman had lived with Wallace while gathering evidence to convict Wallace. (Federal Pet. at 7B; Resp't Answer at 22.) Windham was attempting to impeach a police officer's assertion that he would never allow an informant to collect evidence against someone who the informant was having sex with. (5 Rep. R. at 307.).
b. Mahaney
Windham argues that he was denied his Sixth-Amendment right to confront a witness against him when Mahaney told the jury that he personally knew Windham's voice and identified it on the tape of Newman's drug buys. (Federal Pet. at 7, 7C-7D; Pet'r Reply at 13-18.) At trial, Newman identified Windham's voice on the tapes. (5 Rep. R. at 229-30, 234, 236, 245-46, 255.) During jury deliberations, Mahaney stated to the other jurors that he personally knew Windham's voice, but did not use that knowledge and referred the other jurors to the trial testimony regarding Windham's voice. (9 Rep. R. at 9, 12, 19-20.) In fact, Mahaney told the other jurors that it would be improper for him to tell the jury information he received outside of the trial. ( Id. at 12-13, 17.) Thus, the record supports the conclusion that Mahaney did not identify Windham's voice by relying on extra-judicial information, which defeats Windham's Sixth-Amendment claim. Further even if Mahaney's conduct resulted in a constitutional violation, it did not have a substantial and injurious effect or influence in determining the jury's verdict. Pyles v. Johnson, 136 F.3d 986, 990-96 (5th Cir.), cert. denied, 524 U.S. 933 (1998); Jordan v. Estelle, 594 F.2d 144, 146 (5th Cir. 1979) (per curiam).
5. Trial Court's Actions
Windham asserts that his due-process rights were violated when the trial judge displayed his bias against the defense by his erroneous rulings limiting his cross-examination. Windham argues this bias was also shown by the judge's comments to Windham's attorney when she asked for one of the tapes to be played for the jury. (Federal Pet. at 8-8B; Pet'r Reply at 18-19.) On direct appeal, the court of appeals held that Windham had failed to preserve error because counsel did not object to the court's conduct. Windham, Nos. 11-00-164-66-CR, slip ops. at 3-4 (citing TEX. R. APP. P. 33.1). In refusing Windham's petitions for discretionary review, the Court of Criminal Appeals implicitly reached the same conclusion. See Ylst, 501 U.S. at 803 (holding when last reasoned opinion explicitly imposes procedural default, later decision will not be seen as silently disregarding the bar). The contemporaneous-objection rule is an adequate and independent state ground that procedurally bars federal habeas review of a petitioner's claims. Sharp, 107 F.3d at 285-86; Nichols, 69 F.3d at 1280 n. 48. Thus, this claim is barred from this court's review.
6. Insufficient Evidence
Windham argues that the evidence is legally insufficient to support his conviction because he was convicted solely on the uncorroborated testimony of an informant and because there was no evidence that Windham was in possession of any drugs or money used in the deals. (Federal Pet. at 8D; Pet'r Reply at 19-20.) Cockrell argues that because the Court of Criminal Appeals denied Windham's claim without written order on state habeas review, it can be assumed that it did so on procedural grounds. (Resp't Answer at 31-32.) See Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1988) (holding evidentiary sufficiency claims not cognizable in post-conviction, collateral attack); Ex parte Williams, 703 S.W.2d 674, 677 (Tex.Crim.App. 1986) (same). By denying Windham's application "without written order," the Court of Criminal Appeals did not clearly and expressly deny Windham's claim on an independent and adequate state procedural ground, which would render the claim procedurally barred in federal court. To prohibit a federal court's collateral review, the state court must have expressly relied on the procedural default as the basis for disposing of the claim. Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999). Here, neither the trial court nor the Court of Criminal Appeals mentioned procedural default as a basis for denying the claim. Cf. West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996) (holding sufficiency claim procedurally barred after state habeas trial court held claim was procedurally defaulted and the Court of Criminal Appeals denied without comment), cert. denied, 520 U.S. 1242 (1997); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994) (same). Thus, it would be inappropriate to apply a procedural bar in this case. Cf. Bledsue, 188 F.3d at 256-57 (holding claim not procedurally barred when last state court to render a reasoned decision addressed the merits).
Windham did not challenge the legal sufficiency of the evidence on direct appeal.
But, the evidence was legally sufficient. To review the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence "in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All credibility choices and conflicting inferences are to be resolved in favor of the fact-finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822 (2000). This court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 324 n. 16).
At trial, Officer Rodney Price testified that Newman was working for him as a confidential informant when she bought drugs from Windham. (5 Rep. R. at 14-15, 25-26, 54-55, 71.) Before Newman approached Windham on all three buys, she was searched and fitted with a recording device to tape the drug buys. ( Id. at 28-29, 32-34, 57-58, 73-75.) While Newman went into the house, Officer Price waited outside and watched her go to and from the house. ( Id. at 38, 40, 59, 75-76.) Newman gave Officer Price the methamphetamine and the tapes when she returned after the buys. ( Id. at 34, 40, 61, 77.) Officer Price stated that the recordings covered the events while Newman was inside the house, that they were accurate copies of the conversations, and that they had not been altered or modified. ( Id. at 51, 69, 84-85.) One of the tapes was played for the jury and the jury listened to the other two tapes during deliberations, which constituted other evidence connecting Windham to the offenses. (6 Rep. R. at 96, 98; 9 Rep. R. at 20.) See TEX. CODE CRIM. PROC. ANN. art. 38.141 (Vernon Supp. 2003). This evidence is sufficient to support Windham's convictions. E.g., Jefferson v. State, 99 S.W.3d 790, 792-93 (Tex.App.-Eastland 2003, pet. refd); Cantelon v. State, 85 S.W.3d 457, 461-62 (Tex.App.-Austin 2002, no pet.); Gamer v. State, 939 S.W.2d 802,806 (Tex.App.-Fort Worth 1997, pet. refd).
The facts in Jefferson are virtually identical to the instant case, including the fact that Newman was a confidential informant and Officer Price supervised her drug buys.
7. Indictment
Windham asserts that his due-process rights were violated by a constructive amendment of or variance in the indictment. He bases his claim on the fact that the jury charges included "adulterant and dilutant," which was not included in the indictments. (Federal Pet. at 8E; Pet'r Reply at 23-25.) In habeas actions, federal courts do not sit to review mere errors under state law. Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir.), cert. denied, 502 U.S. 875 (1991). At its core, Windham's claim only raises a question regarding Texas law. Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993); cf. Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir. 2001) (holding passing reference to Constitution does not exhaust constitutional claim). Thus, because the indictment was sufficient under Texas law to confer jurisdiction on the trial court, Windham's indictment complaint provides no basis for federal habeas corpus relief. Williams v. Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); McKay v. Collins, 12 F.3d 66, 68-69 (5th Cir.), cert. denied, 513 U.S. 854 (1994); Yohey, 985 F.2d at 229. Further, the indictment was not constructively amended and did not contain a variance: the definition of controlled substance includes adulterants and dilutants. TEX. HEALTH SAFETY CODE ANN. § 481.002(5) (Vernon Supp. 2003); Jackson v. State, 94 S.W.3d 46, 48-50 (Tex.App.-Tyler 2002, pet. ref'd).
8. Summary
In sum, Windham is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Windham 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
Windham'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 July 2, 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); 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 July 2, 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, 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.