Opinion
CIVIL ACTION NO. 4:03-CV-570-Y
October 20, 2003
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)
In this action brought by petitioner Thomas Allen Ducat under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on September 19, 2003; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on October 10, 2003.
The Court, after de novo review, concludes that Ducat'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.
Ducat objects to the magistrate judge's failure to reach the merits of his argument relating to the 700 mile distance he was moved between the preliminary hearing in Tennessee and the revocation hearing at the Byrd Unit in Huntsville, Texas, and his claim that this distance prevented his attorney and witnesses from attending the hearing. As noted by the magistrate judge, however, such allegations were not made grounds for relief, and thus need not be addressed on the merits. See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992). Furthermore, and in that alternative, Ducat made absolutely no claim that the lack of witnesses actually caused him prejudice. See generally Villareal v. United States Parole Commission, 985 F.2d 835, 837 (holding parolee complaining of delay in scheduling hearing and loss of contact with witnesses must show actual prejudice).
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 Ducat'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 Ducat by certified mail, return receipt requested.