Opinion
CIVIL ACTION NO. 2:99-CV-107-J
September 19, 2001
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
Came this day for consideration the petition for writ of habeas corpus filed by petitioner JERRY BRYAN KEITH. On August 15, 2001, the United States Magistrate Judge issued a Report and Recommendation in this cause, recommending therein that Petitioner's application for a writ of habeas corpus be denied. Petitioner filed objections to the Magistrate Judge's Report and Recommendation on August 27, 2001. Petitioner also filed corrections to the prior-filed objections on September 5, 2001.
The undersigned United States District Judge has made an independent review of the record in this case and has examined the Report and Recommendation of the Magistrate Judge, as well as the objections and corrections filed by Petitioner. The District Judge is of the opinion that Petitioner's objections should be, and are hereby, OVERRULED. The District Judge is of the further opinion that the Magistrate Judge's Report and Recommendation should be and is hereby ADOPTED. Accordingly, the petition for a writ of habeas corpus filed by Petitioner is DENIED.
Petitioner raised several new arguments in his objections to the Magistrate Judge's report. These new arguments have not been considered and are overruled. Kinash v. Callahan, 129 F.3d 736, 739 n. 10 (5th Cir. 1999).
In section IV.B. paragraph 3, the Magistrate Judge denies Petitioner's argument on the basis that "[u]nder 28 U.S.C. § 2254(d)(1), Keith's argument must fail because he cannot show an unreasonable application of Supreme Court law." Section 2254(d) applies only to issues that have been adjudicated on the merits in state court. In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Where there is no adjudication on the merits in state court, as in this case, the correct standard of review for federal courts is de novo review. Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997); see also Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
Here, the Magistrate Judge's conclusion that Petitioner's argument must fail under section 2254(d) is in error; however, the Magistrate, in fact, conducted a de novo review of Petitioner's claim, and his argument is overruled on that basis.
LET JUDGMENT BE ENTERED ACCORDINGLY.
The United States District Clerk is directed to mail a file-marked copy of this Order to Petitioner and to each attorney of record by first class mail.
IT IS SO ORDERED.