Dimas v. Cockrell

Full title: FRANCISCO DIMAS, Petitioner, v. JANIE COCKRELL, DIRECTOR, T.D.C.J.…

Court: United States District Court, N.D. Texas, Abilene Division

Date published: Apr 2, 2002

CIVIL ACTION NO. 4:01-CV-618-Y (N.D. Tex. Apr. 2, 2002)

Opinion

CIVIL ACTION NO. 4:01-CV-618-Y

April 2, 2002

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)

TERRY R. MEANS, United States District Judge.

The Court¹ has made an independent review of the following matters in the above-styled and numbered cause:

1 By a Special Order entered on December 7, 2001, this case was transferred from the Honorable Eldon B. Mahon to this court.

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge tiled on March 8, 2002.

3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on March 28, 2002.

The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, and that the petition for writ; of habeas corpus should be denied for the reasons stated in the magistrate judge's findings and conclusions.²

2 Dimas filed specific objections only to the magistrate judge's findings, conclusions and recommendation as to his claim that the record did not support a deadly weapon finding on either conviction. The focus of the objection, however, is Dimas's contention (raised and rejected on both direct appeal and in the state writ process) that the Supreme court's interpretation of "use" of a firearm in 18 U.S.C. § 924(c)(1), should govern the Texas courts' interpretation of the phrase "use" in Texas code of criminal Procedure Article 42.12 § 3g(a)(2). The Texas court of criminal Appeals rejected this argument in Gale v. State, 998 S.W.2d 221, 224-25 (Tex.Crim.App. 1999). A federal court defers to and accepts a state court's interpretation of its own law, unless that interpretation violates the Constitution. See Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998). cert. den'd, 526 U.S. 1148 (1999). citing Valles v. Lynaugh, 835 F.2d 126, 128 (5th Cir. 1988).

It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.

It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DENIED.

It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.