Opinion
CIVIL ACTION NO. SA-02-CA-0481 OG (NN)
June 10, 2002
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Petitioner Oscar Jaime Reyna-Guevara's (hereinafter "Petitioner" or "Reyna-Guevara") Emergency Application for Temporary Restraining Order, For Preliminary and Permanent Injunctive Relief and Original Application for Writ of Habeas Corpus filed on May 16, 2002, wherein he seeks a court ordered injunction restraining Respondents from removing him until a decision is rendered on his Writ of Habeas Corpus; and a determination that the immigration judge erred in ordering Reyna-Guevara removed because the removal order was based on an improper State court conviction. On May 16, 2002, the Honorable Orlando L. Garcia issued a temporary restraining order ("TRO") The Respondents consented to a ten (10) day extension thereof. When Respondents refused to consent to another extension of the TRO, Reyna-Guevara filed a Motion to Extend the TRO. Finding good cause to do so, Judge Garcia issued an order extending the TRO until June 17, 2002. In order to better understand the procedural posture of the case, this Court ordered Reyna-Guevara to provide the Court with documents relevant, inter alia, to his state conviction and the removal proceedings before the inunigration judge and the Board of immigration Appeals (hereinafter "BIA"). Respondents have filed a Motion to Dismiss and a Motion to Dissolve the Temporary Restraining Order and Reyna-Guevara has filed a response thereto.
Docket entry # 1.
Docket entry #3.
Docket entry # 7.
Docket entry # 17.
Docket entry # 18.
Docket entry # 8. The Court ordered Petitioner to produce the requested documents because expedience in making a determination prevailed, and the procedures at the preliminary injunction stage are less formal, e.g. the court may rely on otherwise inadmissible evidence, including hearsay evidence, and the court can accept evidence in the form of deposition transcripts and affidavits. Sierra club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993). Nevertheless, the record must support the district court's decision. Id.
Docket entry # 14.
Docket entry # 11.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket entry # 4 5.
After reviewing the parties' submissions, their legal arguments and relevant law, I recommend for the foregoing reasons that the TRO be dissolved, that Reyna-Guevara's request for preliminary and permanent injunctive relief be denied, and that his § 2241 habeas corpus petition also be denied.
I. Statement of the Case
Reyna-Guevara is a forty-seven year old native and citizen of Mexico. Reyna-Guevara legally immigrated to the United States in 1967 but retained his Mexican citizenship and never naturalized despite having lived and worked in the United States these past thirty-five years. During this time he fathered and raised four (4) children, all of whom are U.S. citizens. In the mid 1990s Reyna-Guevara organized and operated his own construction business, which focused on building homes for low income applicants with bad credit. Sometime thereafter the district attorney's office became aware that Reyna-Guevara had fraudulently been collecting down payment monies from prospective home buyers/builders and pocketing the money for his own personal gain.
In January of 1997 a Maverick County grand jury issued four (4) different indictments against Reyna-Guevara for the offense of theft over $1,500 but less than $20,000 in violation of § 31.03 of the Texas Penal Code. Each indictment, standing alone, charged Reyna-Guevara with several counts of committing a state jail felony, punishable by confinement for a term of not more than two years imprisonment or less than eighty days. Reyna-Guevara entered pleas of not-guilty and a jury trial ensued. Reyna-Guevara testified at his trial and presented a defense that he did not deceive the prospective home builders, but merely failed to perform according to the contracts he had with the buyers, and that if he had committed any wrong doing, the cases should have been resolved in civil not criminal court. The jury found Reyna-Guevara guilty in all four indictments. Pursuant to a sentencing agreement, negotiated by Reyna-Guevara's retained counsel and the state, Reyna-Guevara elected to have the trial judge impose his sentence in lieu of the jury. The trial judge imposed a two year suspended sentence of confinement, with four years community service in each cause number, the sentences to run concurrently.
Each of the indictments was given a separate cause numbers.
Docket entry # 11, Documentary Submission Number 1, Indictments Nos. 97-05-04733-CR; 97-05-04740-CR; 97-05-04752-CR; and 97-05-04756-CR.
See TEX. PEN. CODE ANN. § l2.35(a) (Vemon 1997).
See docket entry #. 11, Documentary Submission Number 5 — Petitioner's appellate brief and amended appellate brief filed on direct appeal to the Fourth Court of Appeals.
Reyna-Guevara signed a document entitled "Waiver of Motion for New Trial, Waiver of Motion in Arrest of Judgment and Waiver of Appeal" as part of his sentencing agreement that the judge impose a sentence of two year suspended sentence of confinement, with four years community service in each cause number, the sentences to run concurrently. See Docket entry # 11, Documentary Submission Number 2.
Reyna-Guevara directly appealed his conviction and sentence, despite his waiver of appeal in the sentencing agreement. In a published opinion dated February 24, 1999, the Texas Fourth Court of Appeals affirmed his conviction and sentence. The Texas Court of Criminal Appeals subsequently refused Reyna-Guevara's Petition for Discretionary Review on September 8, 1999, and the mandate issued from the Texas Fourth Court of Appeals on October 28, 1999. Reyna-Guevara neither filed a writ of certiorari or a state application for habeas corpus relief.
Reyna v. State, 993 S.W.2d 142 (Tex.App.-San Antonio, 1999 PDR ref d). On direct appeal, Reyna raised four points of error arguing that the trial judge erred by not quashing the indictment and by permitting the State to amend the indictment; and that legally and factually insufficient evidence supported his conviction.
Under Texas law there is no statute of limitations within which an individual may file a state habeas corpus application. However, a writ of certiorari to the United States Supreme Court must be filed within ninety (90) days after the Texas Court of Criminal Appeals refused his PDR.
On December 9, 1999, the INS issued a Notice to Appear charging Reyna-Guevara with being an alien subject to removal because he had been convicted of an aggravated felony. On April 18, 2000, an immigration judge ordered Reyna-Guevara removed from the United States to Mexico because the immigration judge had received clear and convincing evidence establishing that Reyna-Guevara had been convicted of the offense of theft, that he had been sentenced to two years imprisonment, albeit suspended, and that the Fourth Court of Appeals had affirmed ReynaGuevara's conviction upon direct appeal.
Title 8 U.S.C. § 1101(a)(43)(G), provides that a theft offense for which the term of imprisonment is at least one year, is an aggravated felony. An alien convicted of an aggravated felony is removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
Title 8 U.S.C. § 1101(a)(48)(B) provides:
Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole of in part.
Reyna-Guevara filed a notice of appeal with the BIA, appealing the immigrationjudge's order of removal. On March 11, 2002, the BIA summarily dismissed his appeal on the basis that Reyna-Guevara failed to file an accompanying written brief or statement supporting his notice of appeal. In the dismissal order, the BIA also stated that after reviewing the record, it found no error in the immigration judge's disposition of Reyna-Guevara's case.
Reyna-Guevara then filed the instant motion seeking review of the lawfulness of the final order of removal issued by the INS and affirmed by the BIA.
II. Analysis and Discussion
A. Jurisdiction
In the instant case, Reyna-Guevara brings this habeas action under the general habeas corpus statute, 28 U.S.C. § 2241. The United States Supreme Court has held that federal district courts retainjurisdicZion under § 2241 to review pure questions of law in immigration removal cases, despite the fact that the Antiterrorism Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") eliminated direct judicial review. Habeas review, however, remains limited to errors of law.
Title 28 U.S.C. § 2241 (West 2001) provides in part:
(c) The writ of habeas corpus shall not extend to a prisoner unless —
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment, or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order, or sanction of any foreign state, or under color thereof; the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
See I.N.S. v. St. Cyr, 533 U.S. 289, 305 (2001).
Id. at 306-07.
The sole function of the writ of habeas corpus is to grant relief from unlawful imprisonment or custody. It cannot be used for any other purpose. Thus, in order for the Court to exercise jurisdiction over a habeas proceeding, the petitioner must be in custody. In immigration cases, a petitioner satisfies the "in custody" requirement if petitioner has received a final order of removal. As Reyna-Guevara has received a final order of removal, he satisfies the custody requirement for this Court to hear his § 2241 petition for the writ of habeas corpus.
See 28 U.S.C. § 2241(c).
See Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995).
1. Scope of § 2241 Review Following St. Cyr
The United States Supreme Court held in I.N.S. v. St. Cyr and its companion case decided the same day, Calcano-Martinez v. I.N.S., that in the aftermath of the 1996 enactments of AEDPA and IIRIRA, the district courts retain general habeas jurisdiction under 28 U.S.C. § 2241 to review pure questions of law in immigration removal cases where final removal orders have issued against aliens deemed removable by reason of having been convicted of an aggravated felony. In each decision the Court stressed that the petitioners raised only pure questions of law. None of the petitioners disputed any of the facts establishing their deportability or the conclusion that they were deportable.
533 U.S. 289 (2001).
522 U.S. 348 (2001).
Id.
See St. Cyr, 533 U.S. at 298; and Calcano-Martinez, 533 U.S. at 349.
Reyna-Guevara presents an inapposite situation. Although styled a § 2241 habeas pleading purporting to raise questions of law regarding the removal order, Reyna-Guevara's petition expressly challenges the facts establishing his underlying state conviction and the conclusion that he was deportable. Specifically, Reyna-Guevara argues: (1) his trial counsel rendered ineffective assistance by advising him to go to trial instead of negotiating a plea bargain that would have preserved his immigration status; (2) his trial counsel rendered ineffective assistance by advising him to waive his appellate rights in the sentencing agreement because a successful appeal of any trial error(s) could have potentially resulted in reversal of Reyna-Guevara's conviction for a deportable offense(s); (3) the trial court violated Reyna-Guevara's constitutional rights by not providing him with an interpreter during his sentencing; and (4) because he was sentenced without the aid of an interpreter, his waiver of appeal was not freely, voluntarily and knowingly given. Reyna-Guevara also argues that the immigration judge erred in finding him removable because the underlying criminal conviction triggering his removal was illegally obtained.
The Fourth Court of Appeals specifically addressed issues (3) and (4) on direct appeal. The Court held that Reyna-Guevara executed a knowing and voluntary waiver of appeal. The Court found that Reyna-Guevara the record reflected that an interpreter was present at the guilt/innocent phase of trial, but that Reyna-Guevara had failed to present the Court with firm proof that an interpreter had been denied him at the sentencing phase. Consequently, there was not evidence that the trial court abrogated its duty to ensure that Reyna-Guevara understood the proceedings. The Court wrote "Our record, as noted, affirmatively reflects that questions were posed to Reyna in English and he responded in English. Again, absent proof to the contrary. we cannot presume that Reyna did not understand the exchange or the import of his answers." Reyna v. State, 993 S.W.2d 142 (Tex.App.-San Antonio, 1999 PDR ref'd).
Having thoroughly reviewed Reyna-Guevara's complaints, I find that his § 2241 habeas petition far exceeds the scope of this Court's jurisdiction over pure questions of law as articulated by the Supreme Court in St. Cyr and Calcano-Martinez. Consequently, I recommend that this Court lacks jurisdiction over Reyna-Guevara' s petition.
2. Failure to Exhaust Administrative Remedies
Insofar as Reyna-Guevara's instant petition alleges that the immigration judge erred in his determination that Reyna-Guevara was an alien, subject to removal by reason of having been convicted of an aggravated felony — a deportable offense, I similarly find that the Court lacks jurisdiction over these claims because Reyna-Guevara failed to exhaust his administrative remedies prior to filing his instant petition. The exhaustion doctrine is guided by the principle "that agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer." Congress has specifically required aliens to exhaust their administrative remedies before going into federal court. Title 8 U.S.C. § 1252(d)(1) expressly states that final orders of removal are not subject to review unless "the alien has exhausted all administrative remedies available to the alien as of right."
McCarthy v. Madigan, 503 U.S. 140, 143 (1992).
Id.
In the case sub judice Reyna-Guevara filed a notice of appeal, appealing the immigration judge's order of removal. In the Notice of Appeal filed with the BJA, appealing the decision of the immigration judge, Reyna-Guevara wrote "I deny that the crime and underlying facts of the criminal charges constitute an aggravated felony" and he checked a box indicating that he would file a written brief or statement supporting his reasons for filing his appeal. On March 11, 2002, the BIA summarily dismissed Reyna-Guevara's appeal on the basis that he failed to file an accompanying written brief or statement supporting his notice of appeal.
Reyna-Guevara's instant challenges to the immigration judge's removal order, therefore, are challenges that could have, and should have, been first addressed by the BIA. Reyna-Guevara had the opportunity to fully and thoroughly appeal the order of removal to the BIA, but failed to do so. The Court cannot now allow Reyna-Guevara to circumvent the administrative process he voluntarily abandoned and rejected by filing these claims in federal court. Moreover, I cannot judiciously rationalize that the Supreme Court's decision in St. Cyr relieves petitioners like Reyna-Guevara from their statutory obligation to exhaust their administrative remedies because to so conclude would render appeals to the BIA a nullity. Consequently, it is my recommendation this Court lacks jurisdiction over Reyna-Guevara's claims that the immigration judge erred in finding him removable because of his aggravated felony conviction and ordering Reyna-Guevara removed.
B. Assuming Arguendo this Court has Jurisdiction
Even if I were to recommend this Court had jurisdiction over Reyna-Guevara's petition, I would still recommend dissolving the TRO and denying Reyna-Guevara all requested relief because I find no basis for either ordering a preliminary injunction or granting the writ of habeas.
To prevail on an application for preliminary injunction, the movant must establish each of the following four factors:
(1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable harm if the injunction is not granted;
(3) that the threat of harm to the plaintiff if the injunction is denied outweighs the harm to the defendant if the injunction is granted; and
(4) that the injunction will not impair the public interest.
Harris (County v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999); Griffin v. Box, 910 F.2d 255, 259 (5th Cir. 1990); and Seattle-First Nat'l Bank v. Manges, 900 F.2d 795, 799 (5th Cir. 1990).
A preliminary injunction is a drastic, extraordinary remedy, not to be routinely granted but granted only when the movant has clearly carried the burden of persuasion on each of the four prerequisites. After a thorough review of the briefings and supplemental documents, this Court is hard-pressed to conclude that Reyna-Guevara would succeed on the merits of his claims for several reasons.
See White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting Holkind Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)).
Id.; and Mississippi Power Light v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
While styled a § 2241 pleading, Reyna-Guevara's Petition constitutes a collateral attack on an otherwise final and valid state criminal conviction. Reyna-Guevara complains, inter alia, that his state conviction is constitutionally infirm because his retained counsel rendered ineffective assistance of counsel at his sentencing. However, the current § 2241 petition is not the proper vehicle to challenge the legality of Reyna-Guevaras state conviction and sentence. The only available appropriate means of asserting such claims is through a § 2254 petition. Accordingly, therefore, Reyna-Guevara's § 2241 petition should be dismissed.
As stated in the Statement of the Case, supra, a jury convicted Reyna-Guevara and the trial judge subsequently sentenced him on February 24, 1998. The Texas Fourth Court of Appeals affirmed his conviction and sentence on February 24, 1999. The Texas Court of Criminal Appeals subsequently refused his Petition for Discretionary Review on September 8, 1999, and the mandate issued from the Texas Fourth Court of Appeals on October 28, 1999. Reyna-Guevara neither filed a writ of certiorari or a state application for habeas corpus relief. A conviction becomes final when the time for filing a petition for writ of certiorari to the United States Supreme Court expires, ninety days after the Texas Court of Criminal Appeals denied his petition for discretionary review. Daniel v. Cockrell, 283 F.3d 697, 705 (5th Cir. 2002).
Notwithstanding the foregoing, Reyna-Guevara's collateral attack whether styled as a § 2241 or a § 2254 petition is also foreclosed as a matter of law because an alien cannot collaterally attack a final state court conviction in a habeas corpus proceeding against the INS.
See Zinnanti v. I.N.S. 651 F.2d 420 (5th Cir. 1981); Contreras v. Schiltgen, 151 F.3d 906 (9th Cir. 1998).
In so far as Reyna-Guevara requests that this Court grant a stay of removal pending the outcome of his recently filed state habeas application, the requested relief, if granted, would be an exercise in futility because any subsequent federal habeas review following resolution of his state habeas application would be denied in this Court because his federal habeas petition would be timebarred and ineligible for tolling.
The Court notes that the recently filled state habeas application supports a determination that Reyna-Guevara has not fully exhausted his state remedies.
Title 28 U.S.C. § 2244(d)(1) imposes a one-year statute of limitations on state prisoner's filing habeas petitions, and the limitation period begins to run from the latest of the following dates: the date on which judgment became final; the date on which a state-imposed unconstitutional impediment to filing an application is removed; the date on which the constitutional right asserted was initially recognized by the Supreme Court; or the date on which the factual basis of the claim or claims could have been discovered through due diligence. Section 2244(d)(2) excludes from the limitations period "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." The limitation period became effective April 24, 1996, pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") of 1996.
In the case sub judice, the latest date the limitations period could begin to run, is the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. Reyna-Guevara directly appealed his conviction and subsequently filed a petition for discretionary review, but he did not file a petition for certiorari. Thus, Reyna-Guevara's conviction became final on December 8, 1999, when the time for filing a petition for certiorari with the United States Supreme Court expired ninety (90) days after Reyna-Guevara's PDR was refused. Thus, pursuant to § 2244(d)(1)(A), the statutory, one-year limitations period applicable to Reyna-Guevara's claims began to run on December 8, 1999, giving Reyna-Guevara until December 8, 2000, to timely seek federal habeas review.
AEDPA's one-year limitation period is equitably tolled where the government or state actively misled the petitioner about the case, or where something extraordinary prevented petitioner from asserting his rights. Reyna-Guevara does not demonstrate the government actively misled him about his case, or that something extraordinary prevented him from asserting his rights.
Reyna-Guevara's argument that his counsel rendered ineffective assistance with respect to his negotiating a suspended sentence with community supervision is spurious. Pre-1997 state criminal law did not provide for mandatory probation as Reyna-Guevara argues. Regardless, pre-1997 law like the current statute provides that convictions for theft carry up to two (2) years incarceration. To determine whether an alien has committed an aggravated felony, courts look to the text of the statute violated, not the underlying factual circumstances. At the time of Reyna-Guevara's conviction for violating Texas Penal Code § 12.35(a), Texas law classified the offense as a state jail felony punishable by a maximum of two (2) years incarceration. The statute was promulgated in 1993 and has not been amended. How Texas characterizes the offense, or how Petitioner argues he should have been sentenced for the convictions, however, does not control federal immigration law. Federal immigration law looks only to the term of imprisonment that may be imposed, and not state law, to ascertain whether the offense constitutes an aggravated "felony." Accordingly, any change in Reyna-Guevara's punishment would not change the fact that he was convicted of an aggravated felony as defined by federal law, and thus, subject to deportation.
Lopez-Ehas v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert. denied, 531 U.S. 1069 (2001).
See TEX. PEN. CODE ANN. § l2.3S(a) (Vernon 1997).
See 8 U.S.C. § 1101(a)(43)(G) (West 1999).
See note 8, supra.
Petitioner's response to Respondent's Motion to Dismiss, (Docket entry #11), further argues that Petitioner derived no benefit from the signing the sentencing agreement in which he waived his right to appeal, and that his trial counsel rendered ineffective assistance by advising Petitioner to sign said sentencing agreement. I believe Petitioner's counsel effectively negotiated on Petitioners behalf and that Petitioner derived several benefits from signing the sentencing agreement. First, the trial judge not the jury sentenced Petitioner. Second, the trial judge imposed a two year suspended sentence of confinement, with four years community service in each cause number, the sentences to run concurrently. These benefits were significant because had the jury and not the judge imposed sentence, Petitioner could have received a two year maximum sentence for each of the four convictions, sentences to run consecutively.
Finally, even if Reyna-Guevara prevailed in his state habeas application on his claims that his counsel rendered ineffective assistance of counsel during his sentencing, the error if any relates to punishment and would not render his conviction unconstitutional. As stated above, the offense(s) for which he was convicted determines Reyna-Guevara's deportability status. Here, a Maverick County jury found Reyna-Guevara guilty under four different cause numbers for the offense of theft over $1,500 but less than $20,000 in violation of § 31.03 of the Texas Penal Code. Each conviction, standing alone, constituted a state jail felony and exposed Reyna-Guevara to a sentence of confinement for a term not more than two years or less than eighty days. Consequently, each of these convictions standing alone classified Reyna-Guevara as a deportable alien because the crimes are arguably deportable offenses under several provisions of IIRIRA. First, the offense(s) for which Reyna-Gueavara was convicted constitute the deportable offenses of "crimes of moral turpitude" because "a sentence of one year or longer may be imposed . . ." Second. the offense(s) of conviction constitute the deportable offense of "multiple criminal convictions" because Reyna offenses constitute the deportable offense as an aggravated felony — specifically the aggravated felony offense of "theft" for which the term of imprisonment was at least one year. Unquestionably, Reyna-Guevara was convicted of a deportable offense. This fact does not change, regardless of his beliefs to the contrary, or regardless of whether he lodges his challenges thereto in the injunctive relief or habeas context.
See TEX. PEN. CODE ANN. § 12.35(a) (Vernon 1997).
See 8 U.S.C. § 1227(2)(A)(i)(11) (West 1999) (emphasis added).
Id. at § 1227(a)(2)(A)(i) (emphasis added).
Id. at § 1227(a)(2)(A)(iii).
8 U.S.C. § 1101(a)(43)(g) (West 1999).
III. Recommendation
For the foregoing reasons I recommend that the District Court Order:
1) the TRO be dissolved;
2) Reyna-Guevara's request for preliminary and permanent injunctive relief (Docket entry #1) be denied;
3) Reyna-Guevara's requested relief for § 2241 habeas corpus relief (Docket entry # 1) be denied and his federal habeas petition (Docket entry #1) be dismissed; and
4) Respondent's Motion to Dismiss and Dissolve the Temporary Restraining Order (Docket entry no. 14) be granted.
The District Court's adoption of this Court's recommendation in its entirety would fully resolve the instant case as presently filed in this District.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL
The United States District Clerk shall serve a copy of this United States Magistrate Judge's Findings and Recommendation on all parties by either (1) mailing a copy to each of them by certified mail, return receipt requested, or (2) facsimile if authorization to do so is on file with the Clerk.
The United States District Clerk shall serve a copy of this United States Magistrate Judge's Findings and Recommendation on all parties by either (1) mailing a copy to each of them by certified mail, return receipt requested, or (2) facsimile if authorization to do so is on file with the Clerk.
Pursuant to Title 28 U.S.C. § 636(b)(1), and Rule 4(b) of the Local Rules for the Assignment of Duties to United States Magistrates, the parties are hereby notified that a party desiring to object to this report must file with the Clerk of this Court and serve the Magistrate Judge and all parties with written objections to the findings and recommendation included above within ten (10) days after being served with a copy of this Memorandum and Recommendation.
See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
A party's objections must specifically identify the findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file written objections to the proposed factual findings, legal conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court of those proposed factual findings, legal conclusions, and recommendations.
See Battle v. US. Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).
See generally Thomas v. Arn, 474 U.S. 140, 150-55 (1985); 28 U.S.C. § 636(b)(1).
Additionally, failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within ten (10) 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 acceptediby the District Court. unless the party validly alleges grounds of plain error.53
ORDERED and SIGNED