Opinion
2:00-CV-0376
November 6, 2003
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Petitioner TONY BARGAS, a state prisoner, has filed with this Court a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Douglas Dretke has filed an answer opposing petitioner's habeas application. On September 24, 2002 and on November 19, 2002, petitioner filed a reply brief and a supplemental reply brief, respectively, to respondent's original answer. For the reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that petitioner's federal application for a writ of habeas corpus should be DENIED.
I. PROCEDURAL BACKGROUND
It appears that on or about September 18, 1998, petitioner was involved in a confrontation with individuals named Debbie Teafateller, Monty Proffitt, and John Harrell, at Proffitt's residence. As a result of these events, it appears petitioner was subsequently arrested for burglary of a habitation. Petitioner contends that while he was detained on the burglary of a habitation charge, the police conducted a warrantless search of petitioner's father's residence where petitioner was residing at the time. Petitioner contends the police "found a gun outside the house on top of a motor wrapped with plastic." Subsequently, on November 5, 1998, petitioner was charged by indictment with the third degree felony offense of felon in possession of a firearm, such offense alleged to have occurred on or about September 18, 1998. The indictment noted petitioner's May 26, 1988 conviction for the felony offense of possession of amphetamine as the predicate felony conviction for the felon in possession of a firearm offense. See State v. Bargas, Cause No. 3433, 69th Judicial District Court, Dallam County, Texas.
On April 1, 1999, petitioner entered into a plea agreement with the State in Cause No. 3433, the felon in possession of a firearm case, whereby the State agreed to recommend petitioner's punishment be assessed at four (4) years confinement, and that the trial court not make a finding that a deadly weapon was used in the commission of the offense. Pursuant to the plea agreement and the agreed punishment recommendation, petitioner entered a guilty plea to the firearm possession charge. The trial judge then continued the case.
On May 15, 1999, petitioner was arrested for theft of electronics from a store. While he was being arrested and/or confined, petitioner apparently kicked one or more of the police officers.
On June 17, 1999, the state trial court, pursuant to petitioner's April 1, 1999 guilty plea in Cause No. 3433, found petitioner guilty of the felon in possession of a firearm offense and, pursuant to the sentence recommendation, assessed petitioner's punishment at four (4) years confinement in the Texas Department of Criminal Justice, Correctional Institutions Division. On that same date, petitioner, through appointed trial counsel, filed a timely notice of appeal initiating an appeal of his conviction and sentence with the Court of Appeals for the Seventh District of Texas at Amarillo.
On July 1, 1999, petitioner was indicted for the offense of assault on a public servant arising out of his May 15, 1999 arrest and/or confinement. The indictment alleged, for purposes of enhancement, a May 1988 amphetamine possession conviction. See State v. Bargas, Cause No. 3465, 69th Judicial District Court, Dallam County, Texas. On that same date, petitioner was also charged by indictment, in two separate causes, with the offenses of aggravated assault with a deadly weapon arising out of the September 18, 1998 confrontation between petitioner, Teafateller, Proffitt, and Harrell. These indictments also alleged the May 1988 amphetamine possession conviction for purposes of sentence enhancement. See State v. Bargas, Cause Nos. 3468, 3472, 69th Judicial District Court, Dallam County, Texas.
On August 19, 1999, petitioner entered into plea agreements with the State in Cause Nos. 3465, 3468 and 3472, whereby the State agreed:
1. to dismiss the enhancement paragraphs in each case;
2. to recommend a 10-year sentence in each case, said sentences to run concurrently;
3. that no other cases would be prosecuted against petitioner based on circumstances that occurred on September 18, 1998; and
4. not to file any other assault on a public servant cases against petitioner based on the incident which occurred on May 15, 1999.
Pursuant to the plea agreement in Cause No. 3465, the assault on a public servant case, petitioner agreed to dismiss his appeal in Cause No. 3433, the felon in possession of a firearm case. The plea agreements in Cause Nos. 3468 and 3472, the aggravated assault cases, also referenced petitioner's understanding that the Court would enter, in those cases, a finding that a deadly weapon was used during the commission of the aggravated assaults.
On that same date, August 19, 1999, petitioner pursuant to the plea agreements outlined above, entered guilty pleas in Cause Nos. 3465, 3468 and 3472. The trial court accepted petitioner's pleas, adjudged petitioner guilty of the charged offenses, and sentenced petitioner according to the 10-year sentence recommendation.
On August 20, 1999, petitioner and his appointed appellate counsel, pursuant to the plea agreement in Cause No. 3465, filed a motion to dismiss the appellate court proceeding wherein petitioner had appealed Cause No. 3433, the felon in possession of a firearm conviction. On August 30, 1999, the state intermediate appellate court dismissed petitioner's appeal pursuant to said motion. On September 23, 1999, petitioner filed a pro se notice of appeal, again attempting to appeal his June 17, 1999 felon in possession of a firearm conviction and sentence in Cause No. 3433. On October 26, 1999, the state appellate court dismissed petitioner's appeal for lack of jurisdiction due to the untimeliness of the notice of appeal. Bargas v. State, No. 07-99-0320-CR. Petitioner did not file a petition for discretionary review seeking review by the Texas Court of Criminal Appeals.
On July 11, 2000, petitioner filed one state application for a writ of habeas corpus wherein he challenged his June 17, 1999 felon in possession of a firearm conviction in Cause No. 3433, his August 19, 1999 assault on a public servant conviction in Cause No. 3465, and his August 19, 1999 aggravated assault with a deadly weapon convictions in Cause Nos. 3468 and 3472. Ex parte Bargas, No. 44, 638-02, -03, -04, and -05. On October 11, 2000, the Texas Court of Criminal Appeals denied petitioner's applications without written order on findings of the trial court without a hearing.
On January 4, 2000, petitioner filed a state habeas application, No. 44, 638-01, wherein he identified the conviction challenged as Cause No. 3465, the assault on a public servant conviction. The grounds and arguments raised in that petition, however, appear to attack his conviction in Cause No. 3433, the felon in possession of a firearm conviction. This first state habeas application was denied without written order on findings of trial court without a hearing on March 15, 2000.
On November 17, 2000, petitioner filed the instant application for federal habeas relief with this Court. By his application, petitioner appears to challenge his convictions and sentences in Cause Nos. 3433, 3465, 3468 and 3472.
It is clear petitioner is presently challenging the felon in possession of a firearm conviction (No. 3433) and the two aggravated assault convictions (Nos. 3468 and 3472). It is difficult to determine whether petitioner is challenging the assault on a public servant conviction (No. 3465) because of the narrative nature of the petition and its legibility. The Court, however, will treat the petition as if it is challenging all four (4) convictions.
II. PETITIONER'S ALLEGATIONS
Petitioner appears to contend he is being confined in violation of the Constitution and laws of the United States under the 4-year sentence assessed in Cause No. 3433 because:
1. Petitioner was subjected to an unlawful search and seizure in that he was detained, and thus no exigent circumstances existed, when a warrantless search for a gun was conducted at petitioner's father's residence;
2. Petitioner was unlawfully detained in that he was denied his right to counsel and to remain silent, and was not advised of the reasons why he was being detained;
3. Petitioner's confession was involuntary because it was coerced by threats, physical violence, and misrepresentations, and because petitioner was denied counsel during interrogation;
4. The state prosecutor committed prosecutorial misconduct;
5. Petitioner was denied effective assistance of counsel because trial counsel:
A. failed to pursue the motion to suppress and motion for discovery filed in that cause;
B. failed to invoke the exclusionary rule.
6. Petitioner's guilty plea was involuntary because it was induced by misrepresentations, threats and improper promises, and because the State breached the plea agreement; and
7. Petitioner was denied effective assistance of counsel on appeal because counsel did not properly advise petitioner.
Petitioner further appears to contend he is being confined in violation of the Constitution and laws of the United States under the 10-year sentences assessed in Cause Nos. 3465, 3468 and 3472 because:
8. The indictments for the aggravated assault cases were defective in that they wrongfully alleged the offense occurred on September 18, 1998, a date on which petitioner was in jail on the burglary of a habitation charge, instead of September 17, 1998, the actual date of the confrontation;
9. Petitioner was denied effective assistance of trial counsel because counsel failed to file a motion to quash the defective indictments;
10. Petitioner's convictions for aggravated assault with a deadly weapon violate the prohibition against double jeopardy because:
A. petitioner had already been convicted of the lesser offense of felon in possession of a firearm; and
B. the aggravated assault offenses were part of the same criminal episode but had not been joined in the earlier prosecution for felon in possession of a firearm.
11. Petitioner's guilty pleas were not voluntary because the State, by seeking deadly weapon findings and 10-year sentences, breached the plea agreement entered into in the felon in possession of a firearm case wherein the State had recommended that no use of a deadly weapon finding be made and because the aggravated assault charges were part of the same conduct for which the State had earlier agreed to recommend a 4-year sentence.
III EXHAUSTION OF STATE COURT REMEDIES
Respondent concedes petitioner has sufficiently exhausted his state court remedies with regard to the issues raised in the instant habeas application, and does not move for dismissal for failure to exhaust. Review of the records from the state court proceedings indicates petitioner has presented, to the highest court in the State of Texas, the substance of the claims he now presents to this federal court. It is, therefore, the opinion of the undersigned that petitioner's habeas application not be dismissed due to any failure to exhaust state court remedies.IV. STANDARD OF REVIEW
Petitioner may not obtain habeas corpus relief in this Court with respect to any claim adjudicated on the merits in the state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.28 U.S.C. § 2254(d). Further, all factual determinations made by a state court are presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Here, the state courts heard and adjudicated, on the merits, the claims petitioner presents to this Court. More specifically, the Texas Court of Criminals Appeals denied petitioner's applications for state habeas relief without a written order on findings of the trial court without a hearing. Ex parte Bargas, 44, 638-02, -04, -05. The rulings of the Texas Court of Criminal Appeals constitute an adjudication of petitioner's claims on the merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Petitioner's burden is significantly heightened in that petitioner cannot prevail even if it is shown that the state court's determination was incorrect. Petitioner must also show the state court unreasonably applied federal law or made an unreasonable determination of the facts. Neal v. Puckett, 239 F.3d 683 (5th Cir.), on rehearing 286 F.3d 230 (5th Cir. 2002), cert. denied Neal v. Epps, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003).
V. TIME BAR
In his answer, respondent initially contends petitioner's challenge to his possession of a firearm by a felon conviction is time barred. Respondent does not address the timeliness of any challenge to petitioner's aggravated assault convictions. The undersigned has reviewed the record and is of the opinion petitioner's application is not time barred as to either his felon in possession of a firearm conviction, or his aggravated assault convictions. It is, therefore, the opinion of the undersigned that petitioner's habeas application not be dismissed as time barred.
VI. GUILTY PLEAS
Petitioner entered a plea of guilty to each of the challenged offenses. A valid guilty plea bars habeas review of most non-jurisdictional claims alleging antecedent violations of constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Barnes v. Lynaugh, 817 F.2d 336, 338 (5th Cir. 1987). Among claims not barred are those that challenge "the very power of the State to bring the defendant into court to answer the charge against him," Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and those that challenge the validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Haring v. Prosise, 462 U.S. 306, 320, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Tollett, 411 U.S. at 267, 93 S.Ct. 1602; Barnes, 817 F.2d at 338. A plea not voluntarily and intelligently made has been obtained in violation of due process and is void. See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
Petitioner does not challenge the power of the State to bring him into court. Thus, the only means available to challenge his convictions on purported constitutional, non-jurisdictional errors that occurred prior to the pleas is to claim that his pleas were invalid, i.e., they were not knowingly and voluntarily entered into. See Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) ("It is well-settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.").
In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970), the Supreme Court stated:
"The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
'[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).'"Id., 90 S.Ct. at 1472.
In the instant case, nothing in the record before this Court reflects petitioner was not adequately informed of the nature of the charges against him and did not fully understand the direct consequences of his guilty pleas. In fact, the state trial court admonished petitioner in written form for all of his convictions, and petitioner signed documents in each case wherein he stated he understood the nature of the charges, that the court had advised him of the consequences of his pleas, and was aware of his rights but was waiving them. These documents also constituted judicial confessions wherein petitioner admitted the charged offenses of felon in possession of a firearm, assault on a public servant, and the aggravated assault offenses. Further, nothing in the record reflects petitioner was induced by threats, misrepresentation, or promises. Petitioner's claims that his guilty pleas were induced by deception, "improper promises" and misrepresentations do not allege any specific facts and are entirely conclusory. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (bald assertions are not of probative evidentiary value). Petitioner's claims that his guilty pleas were induced by threats and coercion and/or unfulfilled promises are also conclusory in that they are mere assertions that are unsupported by any probative evidence. Petitioner's claims that his guilty pleas were involuntary because the State breached the plea agreement in Cause No. 3433 with regard to the deadly weapon findings and sentence recommendation is without merit. A thorough reading of the April 1, 1999 plea agreement in Cause No. 3433, the felon in possession of a firearm case, reveals the State was not in any way prohibited from prosecuting the aggravated assault offenses by that plea agreement. Only after the plea agreement was entered in Cause No. 3472 on August 19, 1999 did the State agree not to pursue any other charges stemming from petitioner's actions of September 18, 1998. Petitioner has not demonstrated his guilty pleas were involuntary or unknowing. Consequently, petitioner's valid guilty pleas bar habeas review of petitioner's non-jurisdictional, pre-plea claims raised in Grounds 1-3, and 8, and such grounds should be DENIED. Petitioner's claim that in Cause No. 3433, the felon in possession of a firearm case, that he was denied effective assistance of trial counsel because counsel failed to pursue the motion to suppress and motion for discovery filed in that cause, and failed to invoke the exclusionary rule are also waived and, thus, Ground 5 should be DENIED. See Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (claims of ineffectiveness are waived by a guilty plea except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea). Further, petitioner's claims of involuntary pleas in Grounds 6 and 11 should be DENIED.
The only specific threat petitioner alleges is that the prosecutor threatened him with going forward with the enhancement paragraphs in the indictment and with the prosecution of additional charges.
Petitioner alleges he was promised that if he accepted the plea agreement for a 4-year sentence in Cause No. 3433, the felon in possession of a firearm case, that the district attorney would not charge him with the two aggravated assault offenses. Petitioner apparently contends this promise was not fulfilled because he was, in fact, charged with the aggravated assault offenses. It is simply not credible that petitioner would proceed to enter into a plea agreement, sign the required waivers and plead guilty to the subsequently charged aggravated assault offenses if these purported promises of non-prosecution had, in fact, been made to him during plea negotiations for the felon in possession of a firearm charge.
VII. PROSECUTORIAL MISCONDUCT
By his fourth ground, petitioner contends his conviction is in violation of the Constitution because the state prosecutor committed prosecutorial misconduct. Petitioner does not identify the actions of the state prosecutor which petitioner contends were wrongful, argue the manner in which these actions amounted to misconduct, other than to intimate that the prosecutor was being vindictive in his prosecution of petitioner, or identify how petitioner was harmed by any such misconduct. This failure to allege any specific facts renders petitioner's claim entirely conclusory. See Ross v. Estelle, 694 F.2d at 1011-12. Petitioner's fourth ground should be DENIED.
Petitioner claims he was promised that if he accepted the plea agreement for a 4-year sentence in Cause No. 3433, the felon in possession of a firearm case, that the district attorney would not charge him with two aggravated assault cases. Petitioner also maintains the prosecutor threatened him with going forward with the enhancement paragraphs in the indictment and with prosecution of additional charges.
VIII. DOUBLE JEOPARDY
In his tenth ground, petitioner appears to argue his aggravated assault convictions are violative of the prohibition against double jeopardy. However, the bases upon which petitioner contends his convictions have twice placed him in jeopardy, i.e., his prior conviction for an offense arising out of the same series of events and the State's failure to join all offenses in one prosecution, do not render his aggravated assault convictions violative of the Double Jeopardy Clause. The felon in possession of a firearm offense is not a "lesser included" offense of aggravated assault, rather, it is an independent cause of action. Further, the joinder of offenses criminal rule cited by petitioner is permissive, thereby allowing an indictment to charge a defendant with two or more offenses but not requiring such a joinder. Even if some misjoinder or nonjoinder violation of the rule had occurred in this case, such an error would not rise to the level of a violation of the prohibition against double jeopardy. Petitioner's tenth ground is without merit and should be DENIED.
IX. EFFECTIVENESS OF COUNSEL
Petitioner contends his convictions were obtained in violation of his constitutional right to effective assistance of counsel, alleging certain post-plea errors on the part of counsel. In order to amount to ineffective assistance of counsel, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court's scrutiny of trial counsel's performance is highly differential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.
Petitioner also makes allegations regarding counsel's effectiveness pre-plea. These allegations, however, are either conclusory or were waived by the pleas as discussed supra under the section entitled Guilty Pleas.
The proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland. Under the Strickland standard, a petitioner must show defense counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A petitioner must also show counsel's deficient performance prejudiced the defense. To establish this prong, petitioner must show counsel's errors were so serious as to deprive petitioner of a fair trial. Specifically, as set forth in Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998), to prove prejudice petitioner must show (1) there is a reasonable probability that, but for counsel's unprofessional errors, the ultimate result of the proceeding would have been different, see id. at 694, 104 S.Ct. at 2068, and (2) that counsel's deficient performance rendered the trial fundamentally unfair, see Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id., 113 S.Ct. at 844. A showing of significant prejudice is required. Spriggs v. Collins, 993 F.2d 85, 88, n. 4. (5th Cir. 1993). A defendant who pleads guilty can satisfy the prejudice prong of Strickland only if he can show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Further, the court need not even consider the deficiency prong if no prejudice has been demonstrated.
As noted above, petitioner voluntarily withdrew his appeal in Cause No. 3433, the felon in possession of a firearm case, pursuant to his obligation under the signed plea agreement in Cause No. 3465, the assault on a public servant case. Petitioner, however, contends he was denied effective assistance of appellate counsel in Cause No. 3433 because counsel did not give petitioner "practical assistance in protecting and preserving his appellate rights thus entitling petitioner to an out of time appeal." Petitioner does not allege in what respect appellate counsel's "assistance" was not "practical," much less deficient. Nor has petitioner shown how he was prejudiced by this lack of "practical assistance" on the part of his appellate counsel. Not only is petitioner's allegation conclusory, failing to set forth any specifics to justify federal habeas corpus relief, his allegation is also contradicted by his execution of the motion to withdraw his appeal.
Petitioner also contends he was denied effective assistance of trial counsel in Cause Nos. 3468 and 3472 because counsel failed to file a motion to quash the indictments. Petitioner contends the indictments were defective because they alleged the offenses occurred on or about September 19, 1998, a date when petitioner was in jail. Again, petitioner entered a knowing and voluntary guilty plea to the indictments he contends were defective and which he argues trial counsel should have attempted to have quashed. Petitioner judicially confessed to the crimes as alleged in the indictments, including the dates and, therefore, such claims should be waived.
The indictments actaully allege the aggravated assaults occurred September 18, 1998.
Even so, petitioner has not, and cannot show trial counsel was ineffective with regard to his handling of the indictments in Cause Nos. 3468 and 3472. Specifically, even under the assumption that there is a date discrepancy in the indictments, the undersigned finds the indictments were not so defective as to fail to confer jurisdiction on the state trial court. Petitioner has not, and cannot, based on the sufficiency of the indictment, show the Court would have granted any motion to quash made on the part of petitioner, nor does petitioner demonstrate that any such motion would have resulted in a different sentence being assessed by the state court. The state court followed the sentencing recommendation of the State which was part of the plea agreement petitioner made with the State. Petitioner has not shown counsel was deficient for failing to file a motion to quash the indictments, that he was prejudiced by any such failure, and fails to meet either prong of the Strickland test.
Petitioner has failed to show defense counsel's performance was in any way deficient. Moreover, petitioner has failed to show he was prejudiced by any purported deficiency on the part of defense counsel. Specifically, petitioner has not demonstrated the result of the proceeding of which he complains would have been different had counsel performed in a different manner. Even if counsel did commit errors, such errors were not so serious as to deprive petitioner of a fair trial, i.e., it does not appear that but for any of counsel's purported failures, petitioner's sentence would have been significantly less harsh. See Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). Petitioner's seventh and ninth grounds should be DENIED.
X. RECOMMENDATION
It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the United States District Judge that the instant Petition for a Writ of Habeas Corpus filed by petitioner TONY BARGAS be DENIED.
XI. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested, and to respondent's attorney of record by regular U.S. mail or other agreed means.
Any party may object to this Report and Recommendation within fourteen (14) days after the date of its filing. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. Any such objections shall be in the form of a written pleading 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 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.