Opinion
No. 3:01-CV-0371-P.
March 11, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636 (b) and an Order of Reference dated January 8, 2003, the District Judge referred "Petitioner's Motion for Leave of the Court, For the Court on Its own Motion, Rehear Cause 3:01-CV-0371-P filed November 22, 2002," to the undersigned Magistrate Judge for report and recommendation. The following are the findings and recommendation of the magistrate judge:
I. BACKGROUND
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Petitioner John Albert Estrada, Sr. is an inmate in the Texas prison system. Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division. Plaintiff has proceeded with this action by and through counsel Juan M. Contreras, Jr.
On October 4, 2002, the undersigned Magistrate Judge issued findings and recommendation in this action. On October 25, 2002, Mr. Contreras filed objections to the findings and recommendation on behalf of petitioner. On October 28, 2002, petitioner filed his personal response to the findings and recommendation. On October 31, 2002, the Court, after "an independent review . . . of petitioner's objections" accepted the findings and recommendation with one modification. On November 16, 2002, petitioner mailed a motion for rehearing. On November 18, 2002, Mr. Contreras filed a notice of appeal on petitioner's behalf.
On November 22, 2002, the district clerk received and filed petitioner's motion for rehearing which is now before the Court. He wants a rehearing so that the Court can view his personal objections to the respondent's answer and to the recommendation of the Magistrate Judge. He wants these objections considered in addition to his attorney's brief.
II. JURISDICTION
A valid and timely notice of appeal generally divests the district court of jurisdiction and transfers jurisdiction to the appellate court. See United States v. 4,970 Acres of Land, More or Less, 130 F.3d 712, 714 (5th Cir. 1997); Matter of U.S. Abatement Corp., 39 F.3d 563, 568 (5th Cir. 1994). Nevertheless, "the trial court may thereafter act in aid of the appellate court's jurisdiction," by denying a post-judgment motion or granting relief under Fed.R.Civ.P. 60(a). See Brown v. United States Ins. Co. of America, 807 F.2d 1239, 1241 n. 1 (5th Cir. 1987). Because the Court should deny petitioner's pro se post-judgment motion for rehearing, the Court has jurisdiction to rule on the pending motion notwithstanding the notice of appeal filed by counsel for petitioner.
III. FINDINGS
Petitioner seeks reconsideration so the Court may now consider his pro se objections in addition to the objections filed by his attorney on his behalf. Such consideration is unwarranted and unnecessary. Petitioner cannot proceed both with and without counsel. A habeas corpus petitioner has "a right to represent himself or to be represented by counsel, but he has no right to a hybrid representation partly by himself and partly by counsel." Lee v. Alabama, 406 F.2d 466, 469 (5th Cir. 1968). "[T]here is no constitutional right to hybrid representation." See Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996) (dealing with hybrid representation on appeal). When a petitioner has accepted the assistance of counsel, he "cannot then expect to be allowed to file a supplemental pro se brief simply because he objects to his attorney's strategy or preparation of the brief. See id. By accepting the assistance of counsel the petitioner waives his right to present pro se briefs on his own behalf. Id. Consequently, the Court should deny petitioner's request for rehearing.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY petitioner's motion filed November 22, 2002, in which he seeks a rehearing of his habeas action brought pursuant to 28 U.S.C. § 2254.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).