Opinion
NO. 4:03-CV-1177-A
February 9, 2004
ORDER
Came on for consideration the above-captioned action wherein Ronnie Bruce Cagle is petitioner and Douglas Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On January 14, 2004, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by February 4, 2004. On January 30, 2004, respondent filed his objections. Petitioner has not made any response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes ade novo determination of those portions of the proposed findings or recommendations to which specific objection is made.United States v. Raddatz, 447 U.S. 667 (1980).
Respondent objects to the Magistrate Judge's finding, at page 7 of his proposed findings, conclusions, and recommendation, that petitioner exhausted his claim of insufficiency of the evidence in state court. Having reviewed the record de novo, the court agrees with respondent. Petitioner did not separately raise an insufficiency of the evidence ground in his state habeas application. Rather, he merely referred to insufficient evidence in making an argument about double jeopardy. In re Cagle, No. 56, 173-01, at 11. Hence, the ground was not exhausted and has been procedurally defaulted.
Respondent has no other objection to the proposed findings, conclusions, and recommendation. The court finds that, except as discussed in the preceding paragraph, the proposed findings, conclusions, and recommendation should be accepted.
THE COURT SO ORDERS.