Opinion
CIVIL ACTION NO. 4:03-CV-265-Y
October 16, 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 Victor Anson Baylor, TDCJ-ID #886636, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Abilene, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
Baylor was charged by indictment in cause no. 0652931D in the 371 st Judicial District Court in Tarrant Count, Texas, with attempting to murder Robert Winrow by shooting him with a firearm (Count 1), and intentionally causing bodily injury to Winrow by shooting him with a firearm (Count 2). (Clerk's R. at 3.) The indictment also included enhancement and habitual offender allegations. (Id.) Baylor's trial commenced on August 2, 1999.
At trial, the evidence showed that Winrow was visiting Fort Worth from Denver, Colorado, on the weekend of September 8, 1996. (4Rep. R. at 11-12.) During the course of Friday and Saturday nights, Winrow gambled at several locations around the city. (Id. at 12-15.) Baylor appeared to follow him from game to game. (Id. at 15, 29-37.) On Saturday night, Baylor lost over a thousand dollars to Winrow on Club Fernandez. (Id. at 22.) Later, after Winrow left the club, a gray car pulled up to his car at a stop light, and a man wearing a mask got out of the gray car and started shooting into Winrow's car. (Id. at 16-17, 42-45, 63-64.) Winrow was struck with a bullet in his buttocks, but managed to drive away. (Id. at 17-19.) A police informant later told the police that Baylor had tried to recruit him to participate in the robbery and that Baylor had admitted to committing the crime. (5Rep. R. at 60-64, 66-67.)
About a month later, following a traffic stop, Baylor was arrested for unauthorized use of a motor vehicle. (4Rep. R. at 70-84.) A female passenger, Linda Cooper, and a male passenger, Dedrick Flowers, were also arrested. A mask like the one worn by the man who shot Winrow and a semi-automatic pistol were found in Cooper's purse and a second firearm was found in the rear seat area of the car where Flowers was sitting. (4Rep. R. at 86-87; 5Rep. R. at 20, 34, 85.) It was later determined that the semi-automatic pistol was the weapon used in Winrow's shooting. (5Rep. R. at 85.) Baylor did not testify at trial.
Based on the evidence, the jury found Baylor not guilty under Count 1 of the indictment, but guilty under Count 2, and the court assessed his punishment at sixty years' imprisonment. (Clerk's R. at 141, 151.) Baylor appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment on May 24, 2001. Baylor v. State, No. 2-99-347-CR (Tex.App.-Fort Worth May 24. 2001) (not designated for publication). On October 3, 2001, the Texas Court of Criminal Appeals refused Baylor's petition for discretionary review. Baylor v. State, No. 1452-01 (Tex.Crim.App. Oct. 3, 2001) (not designated for publication).
Baylor has filed at least two state applications for writ of habeas corpus challenging his conviction. The first was dismissed by the Texas Court of Criminal Appeals on October 6, 1999, because his direct appeal was still pending, and the second was denied without written order on January 15, 2003. Exparte Baylor, Nos. 27, 994-04 27, 994-05, at covers. Baylor 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 March 20, 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). Dretke has filed an answer with supporting documentary exhibits, to which Baylor has filed a reply.
D. ISSUES
In four grounds, Baylor raises the following issues:
(1) The prosecutor engaged in prosecutorial misconduct by making impermissible jury arguments;
(2) The prosecutor engaged in "improper jury voir dire," the trial court improperly instructed the jury, the state manufactured evidence, and he was erroneously convicted of the crime based on "a weapon that [he] had no physical control or knowledge of; and
(3) He received ineffective assistance at trial and on appeal. (Pet. at 7-8.)
E. RULE 5 STATEMENT
Dretke believes that Baylor has sufficiently exhausted his state remedies on the issues presented, and, thus, he does not move for dismissal on this ground. (Resp't Answer at 5.)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. Baylor, 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.
Further, 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. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, as the court did here, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Exparte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Jury Argument
Under his first ground, Baylor claims the prosecutor engaged in impermissible jury argument by commenting on his failure to testify during closing argument of the guilt/innocence phase. (Pet'r Mem. in Support at 2.) The Fifth Amendment prohibits comment on a defendant's silence. Griffin v. California, 380 U.S. 609, 615 (1965). Prosecutors are thus prohibited from commenting directly or indirectly on a defendant's failure to testify in a criminal case. United States v. Montoya-Ortiz, F.3d 1171, 1178 (5th Cir. 1993). A prosecutor's remarks constitute impermissible comment on a defendant's right not to testify if the prosecutor's manifest intent was to comment on the defendant's silence or if the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant's silence. United States v. Baylor, 127 F.3d 380, 396 (5th Cir. 1997). The prosecutor's intent is not manifestly impermissible if there is some other, equally plausible explanation for the remark. Jackson v. Baylor, 194 F.3d 641, 652 (5th Cir. 1999). The question then becomes not whether the jury might or probably would view the challenged remark in this manner, but whether it necessarily would have done so. Id. Challenged comments are evaluated in the context of the trial within which they are made. United States v. Robinson, 485 U.S. 25, 33 (1988); Cotton v. Cockrell, 343 F.3d 746, 751 (2003).
During closing argument, the following exchange occurred:
[THE PROSECUTOR]: And if you've been watching this guy, he's over here smiling. How brutal can you get? How uncaring and unfeeling can you get when you take and empty a .45 caliber pistol at point blank range into a man's car with him sitting behind the wheel and sit through your trial for attempted murder over there and lie.
[DEFENSE COUNSEL]: Your Honor, I am going to object. Is he commenting on the fact that Mr. Baylor didn't testify?
[THE PROSECUTOR]: No. And smile.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Your Honor, he said, "And lie."
[THE PROSECUTOR]: Smile.
THE COURT: Overruled. Overruled. (5Rep. R. at 145-46.)
Baylor argues, as he did in state court, that the prosecutor's comment that he was sitting in the courtroom and lying, and/or the prosecutor's reference to his courtroom demeanor, constituted an improper remark on his failure to testify. (Pet'r Mem. in Support at 2-3.) See Dicker son v. Texas, 685 S.W.2d 320, 324 (Tex.Crim.App. 1984).
The state courts have considered and rejected this claim on three occasions. Having reviewed the prosecutor's remarks in context, the state courts' determination of the issue appears correct. It cannot be said that the prosecutor obviously intended to comment on Baylor's failure to testify at trial. The prosecutor's use of the word "lie" appears to have been a misstatement that he promptly corrected. Nor can it be said that the jury would have "naturally and necessarily" interpreted the prosecutor's reference to Baylor' s courtroom demeanor as a comment on his failure to take the stand. See Bishop v. Wainwright, 511 F.2d 664, 668 (5th Cir. 1975); Basora v. Mitchell, 803 F. Supp. 897, 898 (S.D.N.Y. 1992). Nonetheless, even if the remarks were impermissible, habeas relief is unwarranted as the error was harmless given the overwhelming evidence of Baylor's guilt and the trial court's instruction to the jury that they were not to consider Baylor's failure to testify during their deliberations. (Clerk's R. at 133; 5Rep. R. at 127.) See, e.g., Cotton, 343 F.3d at 752; Montoya v. Collins, 955 F.2d 279, 287 (5th Cir. 1992).
Under his second ground, Baylor contends the prosecutor made impermissible arguments that were outside the record. First, he complains of the following argument.
[THE PROSECUTOR]: This guy's the robber. This guy is the attempted murderer. This guy is dangerous. What was he taking this mask down to San Antonio in October for on the River Walk, to go skiing?
[DEFENSE COUNSEL]: Your Honor, I'm going to object. There is no evidence that Mr. Baylor had the mask.
THE COURT: Overruled.
[THE PROSECUTOR]: Ski San Antonio. All the way down. . . .(5Rep. R. at 147.)
Next, he complains about the prosecutor's inference that he "recruited" Dedrick Flowers.
[THE PROSECUTOR]: And there's one more thing I need to say. Why didn't they know Dedrick Flowers' last name? You heard Chris say that he tried to recruit people to go with him on these missions, on licks. The reason they didn't know Dedrick Flowers' last name was because he was recruited.
[DEFENSE COUNSEL]: Your Honor, I'm going to object. He's not even drawing reasonable conclusions here, Your Honor.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Your Honor, I'm going to object in that he's arguing outside the record and making his own interjections into this.
THE COURT: Overruled.
[THE PROSECUTOR]: They don't know his last name because he was recruited. He was some kid that was picked up off the street.
[DEFENSE COUNSEL]: Your Honor, I'm going to object. He's arguing outside the record as to where this person was picked up, why he was picked up.
[THE PROSECUTOR]: And she's objecting because it hurts. [DEFENSE COUNSEL]: Your Honor, I'm going to object to the side bar.
THE COURT: Overruled. I'll sustain the objection to the prosecutor saying why she's objecting, because she's got a right to object. She doesn't have to give any reason for it. . . .(5Rep. R. at 151-52.)
The state appellate court determined that the complained of statements constituted reasonable inferences from the evidence presented at trial, which are permissible areas of jury argument under Texas law. Baylor v. Texas, slip op., No. 2-99-347-CR, at 10. Baylor provides no adequate reason to question the state court's conclusion on this issue.
When the last state adjudication of a claim is silent or ambiguous, a federal court should "look through" to the last clear state decision on the matter. Dowthitt v. Johnson, 230 F.3d 733, 756 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001); Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).
Baylor also asserts the prosecutor's comment that "she's objecting because it hurts," was impermissible because it "struck at [him] through counsel." The appellate court held that Baylor had not preserved this claim for review because, although counsel objected, she did not request an instruction to disregard the argument and move for a mistrial-i.e., she did not pursue her objection to an adverse ruling. Baylor, slip op. at 13. It is well established under state law that in order to preserve any error from improper jury argument, a party must object to the argument and pursue the objection until the trial court rules adversely. Valencia v. Texas, 946 S.W.2d 81, 82 (Tex.Crim.App. 1997); Harris v. Texas, 784 S.W.2d 5, 12 (Tex.Crim.App. 1989). That is, a party must object to the argument, request an instruction for the jury to disregard, and then move for a mistrial. Cockrell v. Texas, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). This rule constitutes an adequate and independent state ground, and failure to comply with the rule procedurally bars federal habeas review. See Graves v. Cockrell, 343 F.3d 465, 474 (5th Cir. 2003); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999). As such, federal habeas corpus relief is unavailable 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); Finley, 243 F.3d at 219-20. Baylor has failed to meet his burden under either standard.
Moreover, even if the matter had been preserved, Baylor has not shown that the complained-of remark, although inappropriate, was so flagrant or inflammatory as to deny him a fair trial, hi a federal habeas corpus proceedings, a federal court reviews improper prosecutorial argument during a state trial to determine whether the misconduct was so serious as to cast doubt upon the correctness of the verdict. United States v. Johnston, 127 F.3d 380, 398 (5th Cir. 1997). In examining the effect of the prosecutor's impermissible comments, the court considers three factors: "the magnitude of the prejudicial effect of the remark, the efficacy of a cautionary instruction, if given, and the strength of the evidence of the defendant's guilt." Id. The prejudicial effect of the remark in question was slight, and the trial judge immediately attempted to mitigate the effect of the comment. The effect is further minimized when measured with the evidence of Baylor's guilt.
3. Miscellaneous Claims
Under his second ground, Baylor contends (1) the prosecutor encouraged a wrongful conviction by making inflammatory statements, (2) an Allen charge was used without proper instruction to the jury by the trial court, (3) the state manufactured evidence, and (4) the conviction was erroneous because he "had no physical control or knowledge" of the weapon.As to his first claim, he asserts, without explanation, that the following statement by the prosecutor after voir dire was "coercive": "We have no evidence against this man. But we have pieces of evidence for you to put together to convict him, because we know he did it." As Dretke notes, however, Baylor does not direct the court to where in the record this remark was made or offer any reason to believe the remark could be construed as coercive. Thus, this claim is inadequately briefed and is waived. See Trevino v. Johnson, 168 F.3d 173, 181 n. 3 (5th Cir. 1999).
As to his second claim, the jury retired to deliberate at 2:15 p.m. on August 4, 1999. (5Rep. R. at 153.) Shortly before 5:45 p.m., the jury sent a note to the trial judge that it had voted four times but was unable to reach a unanimous verdict. (Id. at 155.) The judge recessed the proceedings and instructed the jury to return the next day at 9:00 a.m. to resume its deliberations. (Id. at 156.) The next morning, the trial judge gave the jury the following supplemental charge:
Good morning, ladies and gentlemen. Members of the jury, you are instructed that in a large proportion of cases, absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusion of other jurors, each juror should show a proper regard to the opinion of the other jurors.
You should listen, with a disposition to being convinced, to the arguments of other jurors. If a large number of jurors are for deciding the case one way, those in the minority should consider whether they are basing their opinion on speculation and guesswork and not on the evidence in the case.
Those in the minority should keep in mind the impression the evidence has made on a majority of the jurors who are of equal honesty and intellect as the minority.
If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time.
Any such future jury will be impaneled in the same way this jury has been impaneled and will likely hear the same evidence which has been presented to this jury. The question to be determined by that jury will be the same questions confronting you, and there is no reason to hope that the next jury will find these questions any easier to decide than you have found them.
With this additional information, you are instructed to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury, if you can do so without doing violence to your conscience. You will now retire and continue your deliberations. (6Rep. R. at 4-5.)
At 10:45 a.m., the jury reached a guilty verdict. (Id. at 6-8.) Thereafter, the trial judge asked each juror individually if that was their verdict, to which each juror answered in the affirmative.
The type of supplemental instruction at issue here is a so-called Allen charge. See Allen v. United States, 164 U.S. 492, 501 (1896); Montoya v. Scott, 65 F.3d 405, 409 n. 3 (5th Cir. 1995). To obtain relief based upon an Allen charge, a petitioner must establish that the charge, under the totality of the circumstances, was so coercive as to have unconstitutionally rendered the petitioner's trial fundamentally unfair. Boyd v. Scott, 45 F.3d 876, 881-82 (5th Cir. 1994). We evaluate the constitutionality of an Allen charge by comparing it to other charges challenged on constitutional grounds. Montoya, 65 F.3d at 409; Boyd, 45 F.3d at 881-84. Having done so, the instruction given in this case was not so coercive as to deprive Baylor of a fundamentally fair trial. Compare Lowenfield v. Phelps, 484 U.S. 231, 235 (1988); Jenkins v. United States, 380 U.S. 445, 446 (1965); United States v. Duke, 492 F.2d 693, 697 (5th Cir. 1974); Boyd, 45 F.3d at 878-84; Bryan v. Wainwright, 511 F.2d 644, 646 (5th Cir. 1975).
Finally, Baylor asserts that the state manufactured evidence and that he was erroneously convicted of the crime based on "a weapon that [he] had no physical control or knowledge of." (Pet. at 7.) As to the first claim, Baylor appears to suggest that there was some "tampering" or "planting" of evidence in the case because the "slug" used to match the weapon to the offense was taken from the car Winrow was driving and not from Winrow' s body. According to Baylor, because the car was "not at the scene of the alleged crime spot anymore," the evidence "could have been tampered with or planted." (Pet'r Mem. of Law at 13.) This claim is nothing more than mere conjecture. A federal court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition, unsupported by the record, to be of probative value. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
As to the second claim, Baylor asserts that he was "convicted of a weapon that the state's witness [Linda Cooper], had been convicted of," and that he never had knowledge of the weapon. (Pet'r Mem. of Law at 14.) However, just because Cooper was convicted of unlawfully carrying the weapon at the time of her arrest, does not mean that Baylor did not use the weapon during commission of the crime for which he was charged. (5Rep. R. at 34-36.) Similarly, just because Cooper testified that she did not see Baylor put the gun in her purse does not mean that he had no knowledge of the weapon. (Id. at 32, 39.)
4. Ineffective Assistance of Counsel
In his third and fourth grounds, Baylor contends he received ineffective assistance of trial and appellate counsel. Specifically, he claims trial counsel was ineffective by failing to (1) object to the improper remarks from the prosecutor, (2) move for a continuance to extend the time to review crucial notes, and (3) subpoena a favorable defense witness. He claims appellate counsel was ineffective by failing to raise his ineffective assistance claims on appeal. (Pet. at 7-8.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST, amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. Strickland, 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002) (applying the Strickland standard to ineffective assistance claims against appellate counsel). 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 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.
Baylor asserted his claims in his state writ application filed on October 11, 2002, however the state trial court, without conducting an evidentiary hearing, denied habeas relief. (State Habeas R. at 39.) In turn, the Court of Criminal Appeals denied the writ without express findings of fact or written order. Exparte Baylor, 27, 994-05 at cover. As previously noted, this typically constitutes an adjudication on the merits by the Court of Criminal Appeals and is entitled to the presumption of correctness. See Neal, 286 F.3d at 235. Further, in the absence of a written opinion or express findings of fact, a federal court may assume that the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied, and imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963); Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002).
The standards of Townsend v. Sain, have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir. 1981).
Thus, assuming the state courts applied the Strickland attorney-performance standard to Baylor's ineffective assistance claims and made factual findings consistent with their denial of the claims, we defer to the state courts' determination unless it appears the decision was: (1) contrary to or involved an unreasonable application of Strickland, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence in the state court proceedings. Bell v. Cone, 535 U.S. 685, 698-99(2002); Pondexter v. Dretke, No. 02-41543, 2003 WL22133295, at *2 (5th Cir. Sept. 16, 2003); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002).
Applying these principles and having independently reviewed each of Baylor's ineffective assistance claims in conjunction with the state court records, it does not appear that the state courts applied Strickland in an objectively unreasonable manner or that the state courts' decision was based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceedings. See Bell, 535 U.S. at 698.
5. Summary
In summary, 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
Baylor'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 November 6, 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 bane 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 November 6, 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.