Opinion
CIVIL ACTION NO. 4:03-CV-0822-Y
December 10, 2003
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:
L 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 Keith Duane Towles, TDCJ-ID #872128, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently housed at the Ellis Unit in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
Towles was charged by indictment in Cause No. 13001 in the 43rd Judicial District Court in Parker County, Texas, with possession of a controlled substance, amphetamine, in an amount of one gram or more but less than four grams. (State Habeas R. at 49.) The indictment also included enhancement paragraphs alleging two prior felony convictions for robbery. (Id.) Towles's trial commenced on November 2, 1998. The jury found Towles guilty of the offense on November 4, 1998, and, on November 5, 1998, having found the enhancement allegations true, the jury assessed his punishment at seventy-five years' confinement. (Id. at 50.)Towles has filed two state applications for writ of habeas corpus. The first state application, filed on April 11, 2000, was granted by the Texas Court of Criminal Appeals on January 10, 2001, to the extent the court allowed Towles to file an out-of-time appeal. (Trial Court Clerk's R. at 82-83.) Ex parte Towles, Application No. 45, 570-01. Thereafter, Towles filed an appeal, and the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on October 4, 2001. Towles v. State, No. 2-01-066-CR. On March 6, 2002, the Court of Criminal Appeals refused Towles's petition for discretionary review. Towles v. State, PDR No. 2103-01. Towles subsequently filed his second state application for writ of habeas corpus challenging his conviction and sentence, which was denied without written order by the Court of Criminal Appeals on May 7, 2003. Ex parte Towles, Application No. 45, 570-02, at cover. He filed this federal petition for writ of habeas corpus in the United States District Court for the Southern District of Texas, Houston Division, on June 27, 2003, and the action was subsequently transferred to this court by order dated July 18, 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 documentary exhibits, to which Towles has filed a reply.
"lState Habeas R." refers to the state court record in Towles's state writ Application No. 45, 570-01, and "2State Habeas R." refers to the state court record in his state writ Application No. 45, 570-02.
D. ISSUES
In four grounds, Towles contends he was denied effective assistance of trial counsel. (Federal Pet. at 7-8.).
E. RULE 5 STATEMENT
Dretke believes that Towles's claims are partially unexhausted and procedurally defaulted because Towles asserts new facts and allegations in his federal petition not raised in state court. (Resp't Answer at 8-11.) 28 U.S.C. § 2254(b)(1), (c). As a preliminary matter, however, Dretke contends Towles's petition should be dismissed on limitations grounds. Id. § 2244(d).
F. STATUTE OF LIMITATIONS
Dretke contends that Towles's petition for writ of habeas corpus is barred by the statute of limitations. 28 U.S.C. § 2244(d). Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations. Section 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by state action in violation of the constitution or laws of the united states is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the supreme court, if the right has been newly recognized by the supreme court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) the 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 shall not be counted toward any period of limitation under this subsection.Id. § 2244(d)(1)-(2).
Dretke asserts that the limitations period was triggered when Towles's conviction became final through the expiration of time for seeking direct review in a timely manner on December 5, 1998, and expired one year later on December 5, 1999, absent any tolling. (Resp't Answer at 5-8.) See TEX. R. APP. P. 26.2(a)(1). Dretke argues that the Texas Court of Criminal Appeals's granting of an out-of-time appeal should have no impact on the commencement of the limitations period. (Id.) Towles, on the other hand, contends that his conviction did not become final for purposes of § 2244(d)(1)(A) until after the conclusion of the out-of-time appeal process, or, in the alternative, that he is entitled to equitable tolling because he has not been "sleeping on his rights." (Pet'r Rebuttal at 3-7.)
There is a split of authority in this court as to whether an out-of-time appeal or petition for discretionary review operates to delay the start of the limitations period. Compare Hernandez v. Dretke, No. 4:02-CV-720-Y, 2002 WL 31875606, at *1 (N.D. Tex. Dec. 19, 2002) (holding time between date conviction became final and date out-of-time petition for discretionary review granted is not part of time during which "direct review" was pending), with Phillips v. Cockrell, No. 4:02-CV-1036-A, 2003 WL 21730650, at *1 n. 2 (N.D. Tex. July 21, 2003) (holding out-of-time petition for discretionary review constitutes part of direct review process for purposes of § 2244(d)(1)(A)), thus tolling the running of the limitations period), and Gibbons v. Cockrell, No. 4:02-CV-960-A, 2003 WL 21056749, at *2-3 (N.D. Tex. May 7, 2003) (same). The Fifth Circuit Court of Appeals has not yet ruled on the limitations issue presented by this case, however it has granted a certificate of appealability on the same or similar issue in Salinas v. Cockrell, No. 02-41721. Nevertheless, until the Fifth Circuit decides the issue, the undersigned continues to adhere to the premise that the granting of an out-of-time appeal cannot erase the time period, which can be weeks, months, or even years, during which nothing was pending before a state court. See Hernandez, No. 4:02-CV-720-Y, 2002 WL 31875606, at *1; Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir. 2000) (holding limitations period not tolled between date statutory period to appeal expired and date out-of-time appeal granted). Thus, it continues to be my legal conclusion that the granting of an out-of-time appeal or petition for discretionary review by the Texas Court of Criminal Appeals concerning a conviction that had already become final does not revive or toll the federal limitations period. Accordingly, the period of limitations for the filing of this petition expired before the petition was filed, and the petition is time barred.
Towles's argument in favor of equitable tolling is more persuasive. He contends that his trial counsel, Robert Blankenship, assured both Towles and his parents that he would file or had filed a notice of appeal, when in fact counsel had apparently abandoned the case. (Pet'r Rebuttal at 4-7.) Towles also complains of the ineptitude of Gerald Scheve, the attorney allegedly retained by his parents "to help" Towles prepare his first state writ, and the fact that Scheve would not return Towles's copy of the reporter's record of the trial court proceedings to him. In support of his allegations, Towles has provided the affidavit of his mother, Mary Towles.(Id. at Ex. M.) According to Towles, Blankenship's misrepresentations and Scheve's ineptitude, in conjunction with his own naivete, prevented him from timely pursuing his state and federal remedies. (Id.)
In the affidavit, Ms. Towles states, verbatim:
As his mother I can attest to the stress and mental strain this ordeal has been on both Keith and myself. It started back with Mr. Robert Blankenship and his inadequate representation of Keith's case. It was evident at the trial that he had not prepared anything in Keith's defense. Then after the trial I kept calling him to make sure he stayed on top of things and file [sic] for the appeal. I could never get him on the phone, always getting the answering machine and he would not return my calls. I made three or four appointments with him, just to talk and see if he was sure to get the appeal filed on time.
Each time Mr. Blankenship assured me that in due time, he would file the appeal and I did not have anything to worry about. As it turns out we did have something to worry about [sic], Mr. Blankenship never bothered to file the appeal nor did he tell us he had not filed. All the time he is telling [sic] he has filed.
After all that we go throug [sic] another ordeal with Mr. Gerald Scheve. He was to help Keith file his Writ of Habeas Corpus, this led to Keith sending his Court Reporters [sic] Report to Mr. Scheve. I do not know what all transpired, but in the long run, Keith requested his papers back. We ultimately found out that Keiths [sic] papers had been lost, and we [sic] did not get anything done until Keith filed a grievance against Mr. Scheve.
Equitable tolling is permitted only in rare and exceptional circumstances. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Mere attorney error or neglect does not warrant equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). Moreover, a petitioner's ignorance or mistake is insufficient to warrant equitable tolling. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). Thus, to the extent Towles relies on Scheve's ineptitude or his own naivete, equitable tolling is not appropriate. An attorney's intentional deceit, however, can warrant equitable tolling if a petitioner shows that he reasonably relied on his attorney's deceptive misrepresentations. United States v. Wynn, 292 F.3d 226, 230-31 (5th Cir. 2002). The affidavit of Towles's mother, in addition to Towles's own assertions, is some evidence that Blankenship misled Towles and his mother to believe that he would file or had filed a notice of appeal on Towles's behalf and that Towles reasonably relied upon the attorney's misrepresentations. In fact, Towles was granted an out-of-time appeal as a result of counsel's failure to give timely notice of appeal. Ex parte Towles, Application No. 45, 570-01. Thereafter, it appears Towles pursued direct review of his conviction within the time frame allowed by state law and pursued or attempted to pursue post-conviction habeas relief in a diligent manner. Thus, applying the doctrine of equitable tolling, Towles's petition, filed on June 27, 2003, is deemed timely filed.
It is noted that Towles filed a grievance against Blankenship with the State Bar of Texas, but the State Bar found no professional misconduct as defined in the Texas Code of Professional Conduct or the Texas Disciplinary Rules of Professional Conduct. (Pet'r Rebuttal at Ex. D.).
Although nearly a year lapsed between the date Towles's petition for discretionary review was refused and the date he filed his second state writ, the record reflects that Towles attempted to collaborate with Scheve regarding preparation of the writ during that time. Scheve, however, was in large part unable to assist Towles's and was forced to hire another attorney regarding the matter due to illness and hospitalization. (Pet'r Rebuttal at Exs. E-K.).
G. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). 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 will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rale but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that 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 applies to both express findings of fact and those unarticulated findings necessary to the state court's conclusions of mixed law and fact. 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 order, 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).
2. Ineffective Assistance
Towles asserts that he received ineffective assistance of counsel because his trial counsel (1) failed "to timely file all pretrial motions that could possibly benefit or further [his] cause," (2) failed "to invoke the Witness Sequester rale" during the pretrial hearing on his motion to suppress,
(3) failed "to object to the General Exploritory [sic] search of [his] vehicle," and (4) failed "to seek out and interview his own potential defense witnesses to ascertain how they planned to testify if called at trial." (Federal Pet. at 7-8.)
Dretke contends that Towles's ineffective assistance claims are partially unexhausted because Towles asserts new facts and allegations in support of his claims not raised in his state writ application. (Resp't Answer at 8.) Although Dretke's assertion is true, the court may deny habeas relief on the merits, notwithstanding the failure of Towles to exhaust his claims in state court. See 28 U.S.C. § 2254(b)(2).
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST, amends. VI, XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. 466 U.S. at 668. 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. Id. 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.
Towles asserted his ineffective assistance claims in his second state writ application, however the state trial court, without conducting an evidentiary hearing, entered an order recommending that relief be denied. (2State Habeas R. at 48.) hi turn, the Texas Court of Criminal Appeals denied the writ without express findings of fact or written order. Ex parte Towles, 45, 570-02, at cover. As previously noted, this 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. Townsend v. Sain, 372 U.S. 293, 314 (1963); Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5th Cir. 2002); Valdez, 274 F.3d at 948 n. 11; Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001). Moreover, where, as here, a petitioner's ineffective assistance claims have been reviewed on the merits by the state courts, we defer to the state courts' adjudication of the claims unless the state courts' 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, 148-49th Cir. 2003); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 537 U.S. 1054 (2002); Santellan v. Dretke, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002). Applying these principles and having independently reviewed each of Towles's ineffective assistance claims in conjunction with the state court records, it does not appear that the state courts' application of Strickland's attorney-performance standard was objectively unreasonable. See Bell, 535 U.S. at 698.
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir. 1981).
Under his first ground, Towles contends Blankenship was ineffective because he failed to timely file all pretrial motions that could possibly benefit or further his cause. The record reflects that Blankenship filed various pretrial motions, including a motion to prevent the State from reading the enhancement count to the jury, a motion for a separate hearing on entrapment, a motion to set aside the indictment because of selective prosecution, a motion in limine, a motion to suppress defendant's statement, a motion to suppress fruits of an illegal search, a motion for production and inspection of evidence, a motion to file additional motions, and an oral motion to recuse, and that a pretrial hearing was held on the motions. (3Rep. R. at 1-2, 82.) It appears the motion in limine and the motion to prevent the State from reading the enhancement count to the jury were granted. (Id. at 89, 93.) It appears the court considered the motion to suppress defendant's statement and the motion for production and inspection of evidence, but made no express ruling on the motions. It appears the court denied the motion to set aside the indictment as untimely and the motion for a separate hearing on entrapment as either untimely or as a fact question for the jury. (Id. at 83-84.) Finally, it appears the court denied the motion to suppress fruits of the search and the motion to recuse after a hearing. (Id. at 4-81.) Towles argues that counsel was "grossly remiss in his duties" by not timely filing the motion to set aside the indictment on selective prosecution and the motion for a separate hearing on entrapment. (Pet'r Mem. in Support at 1-6; Pet'r Rebuttal at 10-11.) He has not, however, demonstrated that had counsel timely filed the motions, the motions would have been granted. Although it appears selective prosecution may be challenged by a motion to quash the indictment under state law, Towles offers no evidence that he was the victim of selective prosecution. See Raise v. Texas, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref d), cert. denied, 531 U.S. 895 (2000). Further, the question of entrapment is indeed generally one for the jury, rather than for the court. See Mathews v. United States, 485 U.S. 58, 63 (1988).
To succeed on a selective prosecution claim, a criminal defendant has the burden to establish a prima facie case of selective prosecution since there is a presumption that a prosecution for violation of a criminal law is commenced in good faith and in a nondiscriminatory fashion. United States v. Armstrong, 517 U.S. 456, 464 (1996). In order to establish a prima facie case of selective prosecution, a defendant must show (1) that, he has been singled out, while others similarly situated have not generally been proceeded against despite committing conduct of the type forming the basis of the charge against him, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith. See United States v. Ramirez, 765 F.2d 438, 439-40 (5th Cir. 1985); Gawlik v. Texas, 608 S.W.2d 671, 673 (Tex.Crim.App. 1980).
Under his second ground, Towles contends Blankenship was ineffective by failing to invoke the "Witness Sequester" rule during the pretrial hearing on his motion to suppress, thus allowing the arresting officers, Deputy Malone and Deputy Oglesby, to listen to the other's testimony and tailor their own testimony accordingly. (Pet'r Mem. in Support at 7-10; Pet'r Rebuttal at 9-10.) See TEX. R. EVID. 614. Consequently, Towles's argues, the trial court was not afforded a fair and realistic version of the officers' testimony concerning the search of his vehicle. (Pet'r Mem. in Support at 7-9.) Even assuming the better strategy would have been to invoke the witness sequestration rule, Towles has not shown prejudice resulting from the presence of the witnesses during the hearing on the motion. To a large extent the first officer's testimony was non-cumulative and pertained to matters which took place before the second officer arrived at the scene. Furthermore, Towles's complaint focuses on the officers' testimony that they observed various bags and/or suitcases in the bed of Towles's pickup, leading them to believe Towles may have been involved in a burglary. (3Rep. R. at 33-34, 48.) The complained of testimony, however, does not concern a matter of critical importance nor does it go to the question of Towles's guilt for the drug offense with which he was charged. See Perez v. Texas, 87 S.W.3d 648, 651 (Tex.App.-San Antonio 2002, no pet.).
Next, under his third ground, Towles contends Blankenship was ineffective by failing to object to the general exploratory search of his truck. (Pet'r Mem. in Support at 11-13; Pet'r Rebuttal at 11-12.) Counsel objected to the search of Towles's vehicle in his motion to suppress on the grounds that the search was a result of an illegal custodial interrogation or detention, or, in the alternative, that Towles's consent to search was involuntary or coerced. (Trial Court Clerk's R. at 11-12.) The trial court, having heard testimony on the issue of consent, denied the motion to suppress. (3Rep. R. at 15-16, 35-36, 66). Thus, it can be inferred that the trial court necessarily believed the officers' testimony and disbelieved Towles's testimony that the consent to search was voluntary. Once Towles voluntarily consented to the search of his vehicle, without restriction or limitation on the areas the officers could search, the search was authorized. See Florida v. Jimeno, 500 U.S. 248, 250-52 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir.), cert. denied, 123 S.Ct. 2114 (2003). Consequently, any objection to admission of evidence seized during the search on the grounds raised by Towles would have been futile. Counsel is not required to make frivolous obj ections, arguments, or motions. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
Finally, under Towles's fourth ground, he argues Blankenship was ineffective by failing to make an independent investigation and to interview all potential witnesses before trial. (Pet'r Mem. in Support at 14-24.) Towles's primary complaint appears to be that had counsel talked to potential defense witnesses regarding his entrapment defense prior to trial, counsel would have known the witnesses were not going to testify favorably before pursuing the defense at trial. (Pet'r Mem. in Support at 14-15.) Counsel has a duty to conduct a reasonable pretrial investigation into the facts of a criminal case, which might necessarily include interviewing potential witnesses. See Strickland, 466 U.S. at 691. In the instant case, there is nothing in the record to reflect the nature and extent of Blankenship's pretrial investigation. The record does reflect that counsel subpoenaed at least three witnesses that he believed would testify favorably to an entrapment defense and that the witnesses appeared at trial. (4Rep. R. at 276-78.) After the state closed, counsel talked with the witnesses and apparently decided the witnesses' testimony would not be beneficial to an entrapment defense. (Id. at 277.) Towles also agreed that they should not be called as witnesses and testified: "I don't want nobody because they ain't going to tell the whole truth." Although the better strategy may have been to interview the witnesses before trial, there is no evidence that the witnesses were available and would have agreed to be questioned by counsel beforehand. Moreover, Towles cannot demonstrate that the result of his trial would have been different had counsel interviewed the witnesses sooner by showing that he was precluded from pursuing a different, more viable defensive strategy than that taken by counsel. See United States v. Green, 882 F.2d 999, 1002-03 (5th Cir. 1989). Merely because the chosen strategy ultimately proved to be ineffective does not mean that Towles's trial counsel was ineffective. See Thompson v. Johnson, 7 F. Supp.2d 848, 866 (S.D. Tex. 1998).
Towles is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that he is not entitled to relief under Strickland does not appear to be contrary to or involve an unreasonable application of clearly established federal law or based on unreasonable determinations of fact in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Towles'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 December 31, 2003. 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 December 31, 2003, 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.
SIGNED this