Opinion
Civil Action No. 6:05cv16.
June 22, 2006
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The petitioner Robert Cunigan, an inmate of the Texas Department of Criminal Justice, Institutional Division proceeding pro se, filed this application for the writ of habeas corpus under 28 U.S.C. § 2254 challenging the validity of his conviction. The petition was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
In his petition, Cunigan says that he was convicted of murder on December 23, 1994, receiving a sentence of 30 years in prison. He took a direct appeal, which was denied, and sought discretionary review with the Court of Criminal Appeals, which was refused on December 10, 1997. On November 30, 1998, Cunigan filed his first state habeas corpus petition, which was denied without written order on March 31, 1999. On December 9, 2003, Cunigan filed his second state habeas petition, which was the first raising the issues set forth in the present case. This petition was denied on December 15, 2004.
Cunigan has also previously sought federal habeas corpus relief. See Cunigan v. Director, TDCJ-CID, civil action no. 6:99cv351. He has sought and received permission from the Fifth Circuit Court of Appeals to file a successive habeas corpus petition.
Cunigan's primary ground for relief in the present petition is that he is actually innocent. He has five affidavits from witnesses recanting their prior testimony or statements. The Respondent has been ordered to answer the petition and has done so. In his answer, the Respondent says that the statute of limitations has expired on Cunigan's claims, that actual innocence is not a valid independent ground for federal habeas corpus relief, and that Cunigan has failed to show innocence even were this a valid basis for relief. Cunigan has filed a response to the answer in which he says that innocence is a valid basis for relief and that a rational trier of fact could not have found him guilty without the use of perjured testimony and statements as well as a "coached identification or misidentification" from the chief witness against him (who was not one of those who recanted). Cunigan also alludes to an alleged failure by the prosecution to disclose exculpatory evidence, and says that there was "no evidence to support non-accomplice testimony."
The Testimony at Trial
Cunigan was charged with shooting a man named Melvin Young after Young tried to purchase cocaine from him. The chief witness against Cunigan was Ronnie Stevenson. This witness testified that on September 22, 1993, he was living West Tawakoni, Texas, about 20 or 30 minutes from the town of Wills Point. Stevenson testified that he knew Young through his (Stevenson's) aunt, Tommie Jean Wright. On that date, Stevenson said, he went to his aunt's house and Young was there. After about an hour, Stevenson and Young decided to go to Wills Point to try to purchase some rock cocaine. They first went to the home of an ex-girlfriend of Young's, but no one answered the door. When they left there, they stopped to talk to a group of men gathered on a street corner. One of the men, described by Stevenson as "a tall slinky black male," got into the car and directed them to an abandoned building nearby. The man got out of the car and walked away, and two other men, described by Stevenson as a "little guy" and "a medium-built guy," came over. Young talked to Autry and paid $50.00 for a blue bag which supposedly had cocaine in it.
The "little guy" was identified in court as Cecil Autry, while the "medium-built guy" was identified as Robert Cunigan.
Stevenson said that Young started to drive away, but then realized that the rocks in the bag were not real cocaine; Stevenson thought that it was just "rocks off the road." Young turned the car around and called to the men, and they returned. Young said that "the stuff was not real" and said that he wanted his money back. Autry pulled out a pill bottle and poured three rocks into his hand, saying "you could have had this but you're white and we don't deal with whites." He opened his hand and Young snatched the rocks from him. Cunigan got upset that Young had done this and threw a beer bottle at him, striking him and spilling beer in the car. Young retrieved the bottle and threw it at Cunigan along with the bag of fake rocks, and Cunigan threw the bottle and the bag back at him. After an exchange of words, Young began to drive off, but took a wrong turn and went down a dead-end street. Stevenson yelled at him to turn around, which he did. Autry and Cunigan were chasing after the car. They stood in the road, blocking the way, so Young accelerated to get past them. As they turned the corner, Stevenson saw Cunigan cutting across a yard. He saw Cunigan pull a gun from his pocket and told Young that "he has a gun." Stevenson heard two shots fired, and after the second shot, Young leaned back into the seat and said "they got me." Stevenson thought he was joking and said "no, they did not," but then Young lost control of the car. Stevenson stated that he was able to steer the car to a fire station, where he obtained help, but Young died shortly after arriving at the hospital.
At trial, Stevenson specifically identified Cunigan as the medium-built man who had carried the gun, saying that there was no doubt in his mind. He acknowledged that he did not say anything about the drug deal when he made his initial statement to the police, because he was afraid. However, his aunt came to the police station and told him that the police had advised her that they already knew about the drug deal and that Stevenson should tell them everything, which he then did.
The next witness was Karan Evans, who said that she was sitting on the porch of the house across the street from hers on September 22, 1993, when she saw an unfamiliar car drive up. The car had two white men and a black man in it. It stopped at the corner and some other black men came over. She could see Cecil Autry in the group, and she recognized Cunigan's voice. There was an argument and the car drove away.
A little while later, Evans said, she saw Cunigan run through a field with Autry. She then saw them standing in or near the road, talking to someone as though they were talking to people across the street. After another short period of time, Evans said, they heard gunshots, and she got up and went in the house.
When she came out of the house, Evans said, she saw Cunigan crouched behind a bush. Evans said that she saw the sun glare off of something in Cunigan's hand and said that this object might be a gun, but she added that she was not sure that it was a gun. Shortly thereafter, Evans said that she saw Cunigan getting out of a car on Fifth Street.
Larry Stanford was 11 years old when the incident occurred. On September 22, 1993, he said that he was outside talking to a couple of neighborhood girls when he saw Cunigan (whom he called "Junior") standing at a car talking to a couple of white men. The car "burned off" and Cunigan ran down a trail. The car went down one way, and then turned around. Cunigan said to Autry that he was "going to do something right quick."
Stanford said that he followed them on his bicycle. He was on Fourth Street when he heard the shots fired. While Stanford did not say that he saw who fire the shots, he said that Cunigan dropped a gun case on the ground. Cunigan then told Stanford to get the case and take it to Cunigan's sister Cindy. Greg Dones came in a car and Cunigan got in.
In an affidavit attached to the petition, Stanford says that he remembers being told that Robert Cunigan shot at a white man for snatching his dope. He says that on September 28, 1993, he was taken to the police station where he was told to tell the police that he saw Cunigan shoot at the white man and that he, Cunigan, told Stanford to give a holster that he dropped to his sister. He testified in court as to what he was told to say, not what he had actually seen. Stanford says that at the time, he was only 11 years old, and he did not see Cunigan sell any dope or shoot anyone, and that Cunigan did not tell him to give anyone a holster. He says that John Harris, Cunigan's lawyer, never asked him what he actually knew about what happened that day.
Christopher Howard testified that on September 22, 1993, he was watching television in his living room when he heard two gunshots. He went outside to see where the shots were coming from and saw Cunigan running up the street, while Autry was standing by a tree. He saw Cunigan get into a car, and then he went back into his house.
In an affidavit attached to the petition, Howard says that he never actually saw Cunigan running up the street, but he did see him getting into the car. He says that he did not see the shooting, which was clear from his testimony at trial. Howard also says that Harris never spoke to him about what he had seen or heard.
Bevaughn Rogers testified that he was one of the group of men standing at the corner when the car stopped. He says that Cunigan talked to the men in the car, but that he, Rogers, was not close enough to hear what was said. After Cunigan spoke to them, the car drove off. Cunigan then went up Fifth Street.
After the car left, Rogers said, he heard a shot or shots fired. He asked Greg Dones to go and check on what was going on. A few minutes later, Cunigan came back in Greg Dones' car. Rogers said that he did not see who had fired the shots, nor did he speak to Cunigan after Cunigan returned.
Rogers acknowledged that he had given a statement to police, but said that most of it was "hearsay." Although this statement said that Cunigan had shot at the men for snatching the drugs, Rogers made clear in his testimony at trial that he was just going by what he had heard, and that he did not actually see any of these events.
In an affidavit attached to the complaint, Rogers said that he had written a statement saying that he saw Cunigan make a drug deal with two white men and that Cunigan shot and killed one of the men. He noted in the affidavit that he had testified at trial that he never saw Cunigan sell drugs or shoot anyone and that his written statement had been hearsay. He explains that shortly after Autry was arrested, he (Rogers) gathered up Chris Howard and other witnesses to write statements against Cunigan out of anger and support for Autry. He says that he never spoke to Harris about what he had seen or heard on September 22, 1993.
Bryant Lyons did not testify at trial, but provided an affidavit saying that on September 28, 1993, he gave a written statement saying that he had heard that Cunigan shot a white man for snatching his dope. He explains in the affidavit that this statement was not based on anything which he had seen or heard, but that it was "all hearsay."
Veronica Lyons did not testify at trial, but provided an affidavit saying that on September 28, 1993, she wrote a statement saying that she heard Cunigan say that he was going to spend a lot of time in jail for what he had done, and that he said that he had fired two shots but did not think that he had hit anyone. She says that had she testified at trial, she would have said that she never heard Cunigan say these things. Both Bryant and Veronica Lyons say that Harris never talked to them about what they had seen or heard.
Cunigan called witnesses of his own, including Olympia Jenkins, Tommie Cunigan Britt, who was Cunigan's aunt, Lisa Smith, who was Cunigan's sister, and Eleanor Cunigan, his mother. Jenkins, Britt, and Smith testified that they saw men leaving the scene of the shooting but that Cunigan was not among them, and Eleanor Cunigan testified that her son did not own clothes of the type which Stevenson said that the shooter was wearing.
Legal Standards and Analysis
The Respondent first argues that the statute of limitations has expired on Cunigan's claims. Working backwards through the limitations period, the Respondent asserts that if Cunigan had information prior to January 7, 2003, that the witnesses' statements might not have been correct, then the petition is untimely. The respondent says that because Cunigan does not assert what the factual predicate date is or when he first became aware of the facts alleged in his petition, so the petition should be dismissed as untimely.
For purposes of this case, the statute of limitations began to run on the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D). The recanting affidavits in this case are dated between May and September of 2003. Cunigan clearly could not have filed a state or federal habeas corpus petition seeking relief on the ground of witness recantation without having the affidavits. As the Respondent observes, Cunigan asserts that the recantations were unsolicited, and the record reveals no reason to support that he had any knowledge of the facts which he presents (i.e., the recanting affidavits) prior to May of 2003, the date of the earliest such affidavit. The Respondent's assertion that the statute of limitations has expired is without merit.
Next, the Respondent says that actual innocence is not a ground for relief in federal habeas proceedings, contrary to Cunigan's claims. The Supreme Court has held that a claim of actual innocence does not state an independent, substantive constitutional claim and is not a basis for federal habeas corpus relief; however, the Court left open the question of whether a truly persuasive actual innocence claim may establish a constitutional violation sufficient to state a claim for habeas relief. Herrera v. Collins, 506 U.S. 390, 416, 113 S.Ct. 853 (5th Cir. 2003). However, the Fifth Circuit has answered this question in the negative, holding that claims of actual innocence are not cognizable on federal habeas corpus review. Graves v. Cockrell, 351 F.3d 143, 151; Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000).
Under some circumstances, actual innocence may be a gateway through which a habeas petitioner must pass in order to have an otherwise barred constitutional claim considered on the merits.Dowthitt, 230 at 741-42. That is not the situation here; Cunigan does not point to any allegations which are procedurally barred, for which he is seeking to show actual innocence in an effort to evade the bar. Rather, he is citing actual innocence as an independent ground for relief, which it is not.
The Fifth Circuit has acknowledged, as Cunigan argues, that Texas state habeas law recognizes claims of actual innocence. Cunigan cites Ex Parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996) and State of Texas ex rel. Holmes v. Court of Appeals for the Third District, 885 S.W.2d 389, 397 (Tex.Crim.App. 1994), but he fails to note that these cases apply state, not federal, law. The Fifth Circuit has held that federal habeas corpus is available only for the vindication of rights existing under federal law, not rights existing solely under the rules of state procedure. Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 710, 711 (5th Cir. 1986).
Consequently, Cunigan's contention that he is actually innocent does not set out a valid basis for federal habeas corpus relief as an independent constitutional claim. To the extent that he relies upon this claim as a basis for habeas corpus relief, his petition is without merit.
Instead, the Supreme Court has held that the traditional remedy for claims of innocence based upon new evidence, discovered too late in the day for a motion for a new trial, is executive clemency. Herrera v. Collins, 113 S.Ct. 853, 869 (1993). The Governor of Texas, based upon a recommendation of a majority of the Board of Pardons and Paroles, may grant clemency. Tex. Const., Art. IV, § 11; Tex. Code Crim. Pro. Ann. art. 48.01. Additionally, the Texas Court of Criminal Appeals has approved a procedure whereby claims of actual innocence may be tested through state habeas corpus. State of Texas ex rel. Holmes, 885 S.W.2d at 397. The option of seeking executive clemency, based upon his claim of actual innocence, remains open to Cunigan.
Finally, it should be noted that Cunigan has failed to set out a "truly persuasive" claim of actual innocence even if such a claim were a basis for habeas corpus relief. The Fifth Circuit has stated that "recanting affidavits and witnesses are viewed with extreme suspicion by the courts." Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996). In the context of federal criminal trials, where a motion for new trial is filed based on a recanting affidavit, the judge must compare the trial record with the affidavit and determine for himself whether the affidavit is worthy of belief. United States v. Adi, 759 F.2d 404, 408-09 (5th Cir. 1985).
To establish the requisite probability that he is actually innocent, the petitioner must support his allegations with new, reliable evidence that was not presented at trial and show that it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Finley v. Johnson, 243 F.3d 215, 221 (5th Cir. 2001). Examples of new, reliable evidence include exculpatory scientific evidence, credible declarations of guilt by another, trustworthy eyewitness accounts, and certain physical evidence. See Fairman v. Anderson, 188 F.3d 635, 645 (5th Cir. 1999); Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 865-66 (1995).
In this case, as the Respondent points out, the recanting affidavits in reality change very little of the testimony presented at trial. The substance of Howard's testimony was that he had seen Cunigan running up the street, which his recanting affidavit said that he did not. Rogers testified at trial that the statement which he had given was inaccurate and based upon hearsay, and so his affidavit essentially reiterated his trial testimony. Bryant Lyons did not testify at trial and says in his affidavit that his statement said that he had heard that Cunigan shot at a white man; his affidavit simply made clear the obvious fact that his statement was based on hearsay. Veronica Lyons did not testify at trial, and her affidavit simply recants her assertions that she heard Cunigan make statements that he was going to go to jail and that he had fired the gun twice but did not think that he had hit anyone. Larry Stanford testified at trial that he did not see who fired the shots and that he did not see a drug deal; thus; his affidavit only recants his assertion that Cunigan told him to pick up the gun case (which he refers to as a holster in the affidavit) and give it to his sister.
The recantation of Stanford's testimony regarding the holster, and the recantation of Veronica Lyons' statement regarding statements allegedly made by Cunigan, are thus the only significant recantations found in the affidavits presented by Cunigan. However, Cunigan has not shown, nor does the record indicate, that it is more likely than not that no reasonable juror would have convicted him had this evidence been before the jury. Stevenson's testimony was sufficient to sustain a verdict of guilt beyond a reasonable doubt. Even if allegations of actual innocence set out a valid basis for habeas corpus relief, which they do not, Cunigan would not have shown himself entitled to such relief, and his claim on this point is without merit.
There is no indication in the record that Veronica Lyons' statement to the police was before the jury.
Cunigan also appears to raise other grounds for relief as well. In his response to the answer, he says that his conviction could not have been secured without the use of "perjured testimony" from Howard, Stanford, Bryant Lyons, Veronica Lyons, and Rogers. To the extent that he intends to claim the use of perjured testimony as a basis for relief, such claim does not appear in his state habeas corpus petition and is therefore unexhausted. Even were it exhausted, however, Cunigan is not entitled to relief on this ground. The Fifth Circuit has held that to succeed in showing a due process violation from the use of perjured testimony, a petitioner must show the following: (1) that the witness gave false testimony; (2) that the testimony was material in that it affected the jury's verdict; and (3) that the prosecution used the testimony knowing that it was false. May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied 112 S.Ct. 1925 (1992), petition for certificate of probable cause and stay of execution denied 961 F.2d 74 (5th Cir. 1992).
Here, as noted above, Cunigan has not shown that the testimony given which was subsequently recanted was material to the point of affecting the jury's verdict. Nor has he shown, or even alleged, that the prosecution knew that this testimony was false, or that it would be recanted some ten years later. As the witnesses themselves said, they gave statements to the police within a week after the shooting to the effect that Cunigan had committed the offense, and Cunigan makes no showing that the prosecutor could have been aware that these statements were untrue. This contention is without merit.
Next, Cunigan says that Stevenson's identification of him was either "coached" or a "misidentification." At trial, Stevenson identified Cunigan as the person who fired the shots, saying that there was "no doubt in my mind whatsoever."
The Fifth Circuit has held that "[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court), unsupported and unsubstantiated by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011-12 and n. 2 (5th Cir. 1983); see Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Cunigan's speculation that Stevenson was coached into identifying him or that it was a misidentification lacks any support in the record, particularly in light of the testimony from Karan Evans and Greg Dones placing him at the scene of the shooting. This claim is without merit.
Next, Cunigan complains in his response to the answer about an alleged failure to disclose exculpatory evidence. While he does not make clear what this evidence is, he says in the memorandum in support of his petition that the result of the trial would probably have been different if an individual named Steven Gibson had been called to testify. He says that Gibson was in custody awaiting his own trial at the time of Cunigan's trial, and had been called to testify. When he got to the courthouse, he had a private meeting with Leslie Dixon, the District Attorney. After this meeting, Gibson refused to testify.
After the trial was over, Cunigan says, Gibson contacted Cunigan's father and told him that he would have testified if he had not been threatened by Dixon. According to Gibson, Dixon told him that if he testified on Cunigan's behalf, he would be prosecuted to the full extent of the law. Gibson further stated that had he been called to testify, he would have said that the people who sold the drugs to Young and Stevenson were Vincent Booker and himself, not Autry and Cunigan.
It is clear from the context of Cunigan's petition and memorandum in support that he intends his discussion about Gibson to bolster his claim of actual innocence. However, as noted above, actual innocence is not a basis for habeas corpus relief. As such, this allegation is without merit.
To the extent that Cunigan seeks to bring a claim for suppression of exculpatory evidence, he has not exhausted such a claim by presenting it in that form to the state courts. The Fifth Circuit has said that a federal habeas corpus petitioner fails to exhaust his state remedies when he relies on a different legal theory than he did in state court or when he makes the same legal claim to a federal court but supports the claim with factual allegations that he did not make to the state courts.Dispensa v. Lynaugh, 847 F.2d 211, 217 (5th Cir. 1987); see also Knox v. Butler, 884 F.2d 849, 852 n. 7 (5th Cir. 1989), cert. denied 110 S.Ct. 1828 (1990). Cunigan did not exhaust his theory of suppression of favorable evidence in state court and so his claim is unexhausted.
The requirement that the prosecution disclose exculpatory evidence is set forth in Brady v. Maryland, 373 U.S. 83 (1963). The Fifth Circuit has held that to prevail on a Brady claim, a defendant must show (1) the prosecution suppressed evidence that was (2) favorable to the accused and (3) material to either guilt or punishment. Drew v. Collins, 964 F.2d 411, 419 (5th Cir. 1992). The prosecutor's failure to respond fully to a specific request for evidence favorable to the accused amounts to a constitutional violation only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Drew, 964 F.2d at 419, citing United States v. Bagley, 473 U.S. 667, 682 (1985); accord, Kyles v. Whitley, 115 S.Ct. 1555, 1565 (1995).
In this case, Cunigan apparently contends that the discussion between Dixon and Gibson amounted to suppression of favorable evidence because as a result of this conversation, Gibson did not testify. Even given the dubious assumption that this amounts to aBrady violation, Cunigan has not shown a reasonable probability that had Gibson testified, the result of the proceeding would have been different. As noted above, several witnesses who testified, even those who did not recant, placed Cunigan, not Gibson, at the scene. Stevenson said that Cunigan had the gun, Evans said that she saw Cunigan and Autry running through the field and then saw Cunigan crouching under a bush after the shooting, and Dones said that he drove over and picked up Cunigan after the shooting. Neither Gibson nor Booker were mentioned by any of the witnesses in the case, not even the witnesses called by the defense. This contention is unexhausted and also lacking in merit.
Even if Dixon knew the substance of Gibson's anticipated testimony, this would not place her on notice that all of the other witnesses were supposedly perjuring themselves, particularly in light of the fact that no other witness, prosecution or defense, named Gibson as being present at the scene.
Finally, Cunigan asserts throughout his response to the answer that there was no evidence to connect him to the crime. He says that there was no physical evidence, DNA, or fingerprints and that Stevenson was not a reliable witness, and so the evidence presented was insufficient to show his guilt.
To the extent that he presents a claim that the evidence was insufficient to support his conviction, such claim is without merit. The Fifth Circuit has held that in reviewing the sufficiency of the evidence in the context of habeas corpus proceedings challenging the judgment of a state court, the federal courts' review is limited to determining whether, based upon the record evidence adduced at trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt.Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998), citing Jackson v. Virginia, 443 U.S. 307, 324 (1979). The court's review of the evidence is conducted in the light most favorable to the verdict. Selvage v. Lynaugh, 823 F.2d 845, 847 (5th Cir. 1987). The fact that the evidence was circumstantial does not mean that it is insufficient or that it will not support a verdict. U.S. v. Ochoa, 609 F.2d 198, 203 (5th Cir. 1980).
In this case, the evidence shows that Stevenson specifically testified that Cunigan was the person holding the gun at the time that the shots were fired. Other witnesses placed Cunigan at the scene and said that he ran after the car immediately before the shooting. The fact that there was no physical evidence such as DNA or fingerprints does not mean that the evidence is insufficient, particularly in a case such as this where a review of the facts shows that the likelihood of corroborative physical evidence is slight. When viewed in the light most favorable to the verdict, the evidence is more than sufficient to support the verdict. Cunigan's claim on this point is without merit.
Conclusion
28 U.S.C. § 2254(d) provides that in order to be granted a writ of habeas corpus in federal court, a petitioner must show that the state court's adjudication of his claim resulted in a decision which was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, or resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See Moore v. Cockrell, 313 F.3d at 881. Cunigan has wholly failed to make such a showing.
The Court has carefully examined the grounds for habeas corpus relief presented by the Petitioner Robert Cunigan, as well as the answer filed by the Respondent, the Petitioner's response thereto, the state court records, and all pleadings and documents in the record. Upon such examination, the Court has concluded that the Petitioner Robert Cunigan has failed to show that he is entitled to the issuance of a writ of habeas corpus or to the relief sought in his application for such writ. Absent a showing that the petitioner is in custody in violation of the Constitution, laws, or treaties of the United States, the relief sought cannot be granted. 28 U.S.C. § 2241(c)(3).
RECOMMENDATION
It is accordingly recommended that the petitioner's application for the writ of habeas corpus be denied. 28 U.S.C. § 2243.
A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED.