Opinion
Civil Action No. 3:04-CV-1709-L.
January 31, 2005
ORDER
This is a habeas case brought under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred to the United States magistrate judge for proposed findings and recommendation. On January 3, 2005, the Findings, Conclusions, and Recommendation of the United States Magistrate Judge ("Report") were filed, to which Petitioner filed objections ("Objections") on January 14, 2005.
The magistrate judge identified Petitioner's claims as: (1) ineffective assistance of counsel; (2) defective indictment for the offense of aggravated sexual assault; and (3) lack of evidence to prove the conviction in the second paragraph of the indictment. Report at 2. The magistrate judge found that Petitioner's ineffective assistance of counsel claim is without merit and that Petitioner cannot show that the Texas Court of Criminal Appeals' denial of his application for habeas corpus relief was erroneous and objectively unreasonable as required by 28 U.S.C. § 2254(d). Id. at 5. The magistrate judge also found that since the Texas Court of Criminal Appeals denied relief on Petitioner's defective indictment claim, habeas corpus relief is foreclosed. Id. Regarding Petitioner's claim that there was no evidence to prove the conviction in the enhancement paragraph of the indictment, the magistrate judge found that since Petitioner had entered a plea of "true" to the enhancement paragraph, relief on this ground is foreclosed. Id. The magistrate judge recommends that Petitioner's petition be denied, as Petitioner did not establish that the Texas Court of Criminal Appeals' decision met the prerequisites of 28 U.S.C. § 2254(d)(1) or (2).
Petitioner filed objections to the findings and recommendation of the magistrate judge. Petitioner restates his allegations as to his trial counsel's ineffective assistance and also contends that the indictment was defective because it lacked a grand jury seal. Objections at 3-8. He further alleges that his Fourteenth Amendment right was violated because he was not given an opportunity to prove his allegations. Id. at 8.
After making an independent review of the pleadings, objections, file and record in this case, and the findings, conclusions and recommendation of the magistrate judge, the court determines that the findings and conclusions of the magistrate judge are correct. They are therefore accepted as those of the court. Petitioner's objections are overruled. Accordingly, Petitioner's petition for habeas corpus is hereby denied, and this action is dismissed with prejudice.
It is so ordered.