Opinion
CIVIL ACTION NO. 4:03-CV-1354-Y
April 7, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Warren H. Garrett, Jr., TDCJ-ID #928190, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Beaumont, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In September 2000, Garrett was charged by indictment in the 355th Judicial District Court of Hood County, Texas, with manufacturing and possession of methamphetamine of more than four grams but less than two hundred grams. (Trial Court Clerk's R. at 3.) The indictment also included enhancement and habitual offender allegations. ( Id.) Garrett's jury trial commenced on February 12, 2001. On February 15, 2001, the jury found Garrett guilty of the charged offenses and assessed his punishment at seventy-five years' confinement on count one and sixty years's confinement on count two, the sentences to run concurrently. ( Id. at 38-49.) Garrett appealed his convictions, but the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on July 25, 2002. Garrett v. Texas, No. 2-01-110-CR (Tex.App.-Fort Worth July 25, 2002, pet. ref d) (not designated for publication). In turn, the Texas Court of Criminal Appeals refused his petition for discretionary review on January 15, 2003. Garrett v. Texas, PDR No. 1400-02. Garrett did not seek writ of certiorari. (Petition at 3.)Garrett filed a state habeas application raising the issues presented, which was denied without written order on the findings of the trial court on August 27, 2003. Ex parte Garrett, Application No. 56,449-01, at cover. He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 14, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke has filed an answer with supporting brief and documentary evidence, to which Garrett has filed a reply.
The Second District Court of Appeals summarized the factual background of the case as follows:
After his arrest, [Garrett] filed various motions to suppress, challenging the legality of his arrest and written confession and the seizure of evidence. At the motion to suppress hearing on February 6, 2001, the State presented the testimony of Gerald Wayne Rogers, a narcotics task force officer, regarding [Garrett's] arrest. Rogers testified that he received a report that people were manufacturing methamphetamine at a residence located at 2919 Tanglewood in Hood County, Texas. Rogers and Brent Scott, another task force officer, went to 2919 Tanglewood to investigate.
When they arrived at the address, Rogers knocked on the door. While waiting for a response, Rogers saw outside the door a propane cylinder with a blue discolored valve top and containing two one-gallon bottles of muriatic acid. Rogers testified that the valve of a propane cylinder will turn blue if the cylinder contains anhydrous ammonia, which is used along with muriatic chemicals to manufacture methamphetamine. No one answered the door, so Rogers and Scott went next door to talk to some children present at 3003 Tanglewood, which was next door to 2919 Tanglewood.
While speaking to the children, Rogers and Scott saw a red Mustang convertible with the top down drive into the driveway of the 2919 Tanglewood residence. Rogers and Scott returned to the residence and approached the Mustang. Rogers went to the passenger's side of the car where [Garrett] was sitting, and Scott approached the driver's side where Susan Langston was sitting. Rogers testified that when he got to the passenger's side, he smelled the very strong chemical odor of an illegal narcotic laboratory.
Rogers then told [Garrett] that he was a peace officer and that he was investigating allegations that methamphetamine was being manufactured at 2919 Tanglewood. Rogers read [Garrett] and Langston their Miranda rights and let them get out of the car and wait in the shade. After [Garrett] and Langston told Rogers that they understood their Miranda rights, Rogers asked them if they would consent to a search of the Mustang. Rogers testified that both Langston and [Garrett] consented in writing to a search of the car and the residence. The written consent to search form that [Garrett] signed stated, "I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promises, threats, or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form."
After [Garrett] and Langston signed the form, Rogers began searching the car. While Rogers was searching the car, Langston asked if she could go inside because it was hot. Rogers allowed Langston and [Garrett] to go inside while he completed the search of the car. After Rogers finished searching the car, he went inside, and [Garrett] asked Rogers if [Garrett] could explain to him "what was going on." Rogers told [Garrett] that he could give a written statement if he wanted and then left to obtain a written statement form from his truck.
When he gave the form to [Garrett], Rogers asked him if he could read and understand English. [Garrett] said he could. Rogers gave [Garrett] the written form, which included several preprinted warnings:
I am giving this statement to ______________ and he has duly warned me that I have the following rights:
First: That I have the right to remain silent and not make any statement at all and that any statement I make may be used against me at my trial.
Second: That any statement I make may be used as evidence against me in court.
Third: That I have the right to have a lawyer present to advise me prior to and during any questioning.
Fourth: That if I am unable to employ a lawyer, I have the right to have a lawyer appointed to advise me prior to and during any questioning.
Fifth: That I have the right to terminate the interview at any time.
Below these rights was a written waiver that stated:
Prior to and during the making of this statement, I have read and do hereby knowingly, intelligently, and voluntarily waive the above explained rights and I do make the following voluntary statement to the aforementioned person of my own free will and without any promises or offers of leniency or favors, and without compulsion or permission by any person or persons whatsoever.
Rogers asked [Garrett] to read each of the warnings, and if he understood them, to initial each warning. [Garrett] read and initialed each warning as well as the waiver and then wrote his statement. Rogers testified that [Garrett] was not promised any benefit in exchange for his statement and that he was not threatened or coerced. [Garrett] was placed under arrest after the search of the car was conducted, after he completed his written statement, and right before the officers left the residence.
[Garrett] testified at the suppression hearing. He testified that he was asleep in the passenger seat of the Mustang when Langston drove into the driveway at 2919 Tanglewood. The officers told him and Langston to "put your hands where I can see them." Rogers told [Garrett] that he was there "for some methamphetamine — manufacturing methamphetamine." Rogers read [Garrett] and Langston their Miranda rights and then ordered them into the house. [Garrett] testified that he told Rogers that he did not live at the house and that he did not believe that he had legal authority to consent to search anything. [Garrett] stated that he asked for an attorney shortly after he went into the house. He also testified that he gave his statement in an attempt to exonerate Langston.
On cross-examination, [Garrett] admitted that he had been convicted for burglary, solicitation of capital murder, and credit card abuse and that he had charges for theft pending against him. He testified that he had been in the penitentiary on three separate occasions and admitted that he manufactured methamphetamine before he was arrested on the current charges. He stated that he did not own the Mustang that was searched and that neither he nor Langston owned the residence at 2919 Tanglewood.
D. ISSUES
In four grounds, Garrett raises the following claims:
1. Count one of the indictment failed to allege an offense, therefore the trial court lacked jurisdiction to try count one and the judgement is rendered void;
2. The prosecution failed to disclose evidence favorable to the defense;
3. The trial court erred by failing to hold a hearing on the voluntariness of his confession and making specific findings on the issue; and
4. He received ineffective assistance of counsel. (Pet'r Memorandum in Support at 1, 6, 11, 14.)
E. RULE 5 STATEMENT
Dretke believes that Garrett has sufficiently exhausted available state remedies on the issues presented. (Resp't Answer at 3.)F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision is an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). In such a situation, a federal court assumes that the state court applied the proper "clearly established federal law" and then determines whether its decision was "contrary to" or "an objectively unreasonable application" of that law. Schartzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5th Cir. 2002).
2. The Indictment
In his first ground, Garrett complains that the indictment failed to alleged an offense under count one. Count one alleges that Garrett did "intentionally or knowingly manufacture a controlled substance, namely methamphetamine of more than four grams but less than 200 grams including any adulterants or dilutants, by producing, preparing, propagating, compounding, converting, or processing said controlled substance independently by means of chemical synthesis." (Trial Court Clerk's R. at 3.) Under the statutory definition —
"Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance other than marihuana, directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes the packaging or repackaging of the substance or labeling or relabeling of its container.
TEX. HEALTH SAFETY CODE ANN. § 481.002(25) (Vernon Supp. 2004) (emphasis added). Garrett contends the indictment was fundamentally defective by excluding the language "directly or indirectly by extraction from substances of natural origin." (Pet'r Memorandum in Support at 1-6.)
It is well settled in our circuit, however, that the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it is shown that the indictment is so defective that the convicting court had no jurisdiction. See Lockett v. Anderson, 230 F.3d 695, 702 (5th Cir. 2000); Alexander v. McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985). Where, as here, the state courts have addressed the issue and determined that an indictment is sufficient under state law, the federal court need not address that issue on habeas review. McKay v. Collins, 12 F.3d 66, 68-69 (5th Cir. 1994).
3. Brady Material
In his second ground, Garrett contends the state failed to disclose the results of a "drug test" administered after his arrest that could have been used in preparing his defense. (Pet'r Memorandum in Support at 6-10.) He alleges that on the day he was arrested a drug test was conducted in the presence of the District Attorney and his investigator and that at the time of the test he was so "heavily under the influence of drugs, that he was unable to remember being tested." ( Id. at 7.) He urges that had the test and its results been disclosed, he could have used the evidence at his suppression hearing and at trial to show that he was chemically impaired when he waived his rights and gave his written confession. ( Id. at 8-10.)
Federal due process requires the prosecution to disclose material, exculpatory information to an accused. Brady v. Maryland, 373 U.S. 83, 87 (1963). Such non-disclosure is violative of due process if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). The evidence presented by Garrett in support of this ground rebuts the claim that he was unaware of the test and that the test and its results were not disclosed. The affidavit of Garrett's sister reflects that Garrett was aware, or at least believed, that a test had been conducted shortly after his arrest. (Pet'r Memorandum in Support at Ex. 1; State Habeas R. at 36.) Furthermore, a copy of the letter from Garrett's counsel dated January 30, 2002 reflects that in the material provided by the state to the defense before trial there was a "reference to the drug test and that it was positive." ( Id. at Ex. 4.) Thus, it appears the defense became aware of, or should have been aware of, the test and its results at some point before trial.
4. Hearing on Voluntariness of Written Statement
In his third ground, Garrett contends the trial court erred by "the unconstitutional failure" to hold a hearing as to the voluntariness of his written confession and make specific findings of fact and conclusions of law on the issue as required by article 38.22, § 6 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (Vernon Supp. 2004). Although Garrett attempts to couch this claim as a constitutional violation, the claim merely raises an alleged violation of state law and does not raise a constitutional issue. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998). Errors of state law do not constitute an independent basis for federal habeas relief. Narvaiz, 134 F.3d at 695. Furthermore, contrary to Garrett's assertion, the state court records indicate that the trial court held a hearing on Garrett's "Motion to Suppress Confession" on February 6, 2001, entered a written order denying the motion on February 8, 2001, and, on February 26, 2001, entered written findings in which the court expressly found that Garrett's written statement was in compliance with the requirements and provisions of article 38.22, § 6 and "all applicable decisions of the Texas Court of Criminal Appeals and the Supreme Court of the United States of America." (Trial Court Clerk's R. at 16, 50-51.)5. Ineffective Assistance of Counsel
In his fourth ground, Garrett contends he received ineffective assistance of counsel at trial and on appeal because counsel (1) failed to file a motion to quash the indictment "for its failure to allege an offense" in count one; (2) refused to "bring newly available evidence" at two "critical stages," (3) failed to familiarize himself "with the statutes and codes concerning the voluntariness of a confession pursuant to Art. 38.22,"(4) conceded Garrett's guilt and pointed out that the evidence was proof of his guilt during closing argument, and (5) failed to thoroughly acquaint himself with the facts and governing law of the case and Garrett's prior convictions. (Pet'r Memorandum in Support at 14-22.)A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST, amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. Strickland, 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002) (applying the Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.
Garrett asserted his ineffective assistance claims in his state writ application filed on May 29, 2003, however the state trial court, without conducting an evidentiary hearing, found that there were no "controverted, previously unresolved issues of fact material to the legality of [Garrett's] conviction," and it recommended that relief be denied. (State Habeas R. at 47.) Thereafter, the Texas Court of Criminal Appeals denied the writ without express findings of fact or written order on the findings of the trial court. (State Habeas R. at cover.) As previously noted, this typically constitutes an adjudication on the merits by the Texas Court of Criminal Appeals and is entitled to the presumption of correctness. See Neal, 286 F.3d at 235. In the absence of a written opinion or express findings of fact, a federal court may assume that the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied, and imply fact findings consistent with the state court's disposition. Schartzle, 343 F.3d at 443; Catalan, 315 F.3d at 493 n. 3; Valdez, 274 F.3d at 948 n. 11.
Thus, assuming the state courts applied the Strickland attorney-performance standard to Garrett's ineffective assistance claims and made factual findings consistent with their denial of the claims, we defer to the state courts' determination unless it appears the decision was: (1) contrary to or involved an unreasonable application of Strickland, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence in the state court proceedings. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Pondexter v. Dretke, 346 F.3d 142, 145 (5th Cir. 2003); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002).
Applying these principles and having independently reviewed each of Garrett's ineffective assistance claims in conjunction with the state court records, it does not appear that the state courts applied Strickland in an objectively unreasonable manner or that the state courts' decision was based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceedings. See Bell, 535 U.S. at 698.
Garrett complains that counsel should have filed a motion to quash the indictment as to count one before trial and raised the issue on appeal. In rejecting Garrett's complaint as to the sufficiency of the indictment in this case, the state courts necessarily found that the indictment was sufficient as a matter of state law. Thus, filing a motion to quash the indictment would have been futile. Counsel is not required to engage in the filing of futile motions. Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984). Nor is counsel required to raise every conceivable argument urged by his client on appeal, regardless of merit. Smith v. Robbins, 528 U.S. at 259, 288 (2000). The question is whether Garrett has shown that counsel's failure to raise the issue worked to his prejudice, i.e., that but for counsel's errors he would have prevailed on his appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir. 1991). Garrett has not met this burden.
Next, Garrett complains that counsel refused to "bring newly available evidence" that was withheld by the prosecution — i.e., the drug test and its results, at the pretrial suppression hearing and at trial. According to Garrett, the test and its results were relevant to the issue of whether his written confession was voluntary or whether "he was so drug induced" that he was unable to understand his rights at the time he gave his written confession. Counsel raised this argument in his motion to suppress Garrett's confession, however neither the officers nor Garrett himself testified at the suppression hearing that he was or appeared to be under the influence of drugs at the time he gave his written statement. (Trial Court Clerk's R. at 13-14.) Instead, it could be inferred from the testimony that Garrett was cognizant of what was happening at the time of the arrest and that he understood, but chose to waive, his rights. (Hr'g on Motion to Suppress at 22-27; 8Rep. R. at State's Ex. 5.) In the absence of evidence indicating what drug Garrett was under the influence of or the effect of the drug on Garrett's decision to give a written confession, if any, he cannot establish an ineffective assistance claim.
Garrett also complains that counsel was ineffective because he was not familiar with the law relevant to his case. Counsel has a duty to make a reasonable investigation into the law applicable to the case. See Strickland, 466 U.S. at 690-91. Here, there was no hearing on Garrett's state habeas application, thus it is impossible to determine the extent of counsel's investigation. Nevertheless, Garrett argues that counsel was not familiar with article 38.22, § 2(b) and § 6 of the Texas Code of Criminal Procedure concerning the voluntariness of his confession. Although counsel does not specifically cite to article 38.22 in the motion to suppress the confession or during the suppression hearing, counsel did move to suppress the confession and a hearing was held on the motion. Thus, even if counsel was not aware of the statutory provision, Garrett cannot demonstrate prejudice.
Garrett also argues that counsel was not familiar with the law regarding his prior convictions. The indictment alleges Garrett manufactured and possessed methamphetamine in the amount of four grams or more but less than two hundred grams, first- and second-degree felonies punishable by 5 to 99 years' imprisonment and 2 to 20 years' imprisonment, respectively. See TEX. HEALTH SAFETY CODE ANN. § 481.112(d) (Vernon Supp. 2004); TEX. PENAL CODE ANN. §§ 12.32(a), 12.33(a) (Vernon 2003). The indictment also contains enhancement and habitual offender paragraphs alleging prior felony convictions for credit card abuse in cause number F-87-74623-LJ, criminal solicitation to commit capital murder in cause number F-75-13428-MI, burglary in cause number C69-2024-LK, and burglary in cause number C69-2025-LK. (Trial Court Clerk's R. at 4-5.) If the state proved that Garrett had previously been finally convicted of at least two felony offenses as provided in § 12.42(d), Garrett was subject to 25 to 99 years' imprisonment for each count under the Texas sentencing statute for repeat and habitual offenders. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2004). On various grounds, Garrett alleges that counsel should have objected to the use of one or more of the prior convictions for enhancement purposes. He further alleges that counsel should have objected to the prosecutor's questions regarding the details of his prior conviction for solicitation of capital murder. (7Rep. R. at 63-64.)
The state courts have considered and rejected Garrett's claims. Thus, this court may imply that the state courts concluded Garrett's sentences were properly enhanced as a matter of Texas law. Consequently, the objections raised by Garrett would have been frivolous. Counsel is not required to make frivolous objections. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Moreover, given the overwhelming evidence of Garrett's guilt and his admission of his prior conviction for solicitation of capital murder, any prejudicial effect of the prosecutor's questioning into the details of the conviction was not likely a substantial or critical factor in the jury's determination. See Thomas v. Lynaugh, 812 F.2d 225, 230-31 (5th Cir. 1987). Thus, even assuming counsel should have objected to the prosecutor's line of questioning, Garrett cannot show he was prejudiced as a result of counsel's omission.
Finally, Garrett complains that counsel was ineffective by conceding his guilt during closing argument in the guilt/innocence phase of trial. Specifically, he complains of the following argument: "I'm not here defending what Mr. Garrett did. The evidence is all before you." (7Rep. R. at 14.) Although, arguably, not an explicit admission of Garrett's guilt, counsel's argument could be construed to implicate him in the offenses. In light of the overwhelming evidence of Garrett's guilt presented at trial, however, the argument was reasonable. See United States v. Short, 181 F.3d 620, 624-25 (5th Cir. 1999). Having reviewed counsel's closing argument in toto, it is apparent that counsel's strategy was to acknowledge the evidence and argue that the evidence was illegally obtained.
6. Summary
Garrett is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' adjudication of the issues presented is neither contrary to nor does it involve an unreasonable application of clearly established federal law and is not based on unreasonable determinations of fact in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Garrett's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until April 28, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 28, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.