Opinion
NO. 3-99-CR-0341-G, NO. 3-02-CV-0182-G
November 15, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and an order of reference from the United States District Court for the Northern District of Texas. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
PROCEDURAL BACKGROUND
Movant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Punishment was assessed at 103 months confinement, followed by supervised release for a period of three years. Movant appealed. The Fifth Circuit affirmed in an unpublished opinion. United States v. Dunkins, No. 00-10339 (5th Cir. Dec. 14, 2000), cert. denied, 121 S.Ct. 1639 (2001). He then filed this motion seeking post-conviction relief under 28 U.S.C. § 2255.
ISSUES RAISED
Movant attacks his conviction and sentence in nine grounds for relief. He contends that: (1) he received ineffective assistance of counsel; (2) the evidence was insufficient to support his conviction; (3) the prosecutor acted improperly during trial; (4) the evidence was supported by perjured testimony; (5) his privilege against self-incrimination was violated; (6) his identification was the result of an illegal photo "spread"; (7) his rights under the confrontation clause were violated; (8) his sentence was illegal; and (9) the indictment was defective.
CAUSE AND PREJUDICE STANDARD
Post-conviction relief under section 2255 does not provide redress for every instance of error that may occur in a federal criminal proceeding. United States v. Perez, 952 F.2d 908, 909 (5th Cir. 1992). Instead, the statute affords judicial review of constitutional claims which could not have been raised on direct appeal and would, if ignored, result in a complete miscarriage of justice. Id. at 909; United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). The movant may overcome this procedural bar by a showing of cause excusing the default, and actual prejudice resulting from the errors. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). The ineffective assistance of counsel can meet the cause and prejudice requirement for overcoming procedural default. United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000).
Movant's second through ninth grounds for relief are allegations that could have been raised on direct appeal. Thus, they are procedurally barred unless he can establish cause and prejudice for his default. Movant explains that these allegations were not raised before because counsel failed to accede to his request to assert these issues on appeal. (Motion ¶ 13). This is sufficient to overcome the procedural bar. Kallestad, 236 F.3d at 227.
INEFFECTIVE ASSISTANCE OF COUNSEL
Movant attacks the effectiveness of his counsel on several grounds. Specifically, he claims that counsel: (1) failed to object to the admission of the government's evidence; (2) prompted hearsay testimony from a government witness; (3) did not seek out character witnesses to testify at sentencing; and (4) failed to raise meritorious issues on appeal.
A. Applicable Law
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. amend VI; Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain post-conviction relief due to ineffective assistance of counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must first demonstrate that counsel's performance fell below an objective standard of reasonable professional service. Id. 104 S.Ct. at 2064. He then must show that this deficient performance prejudiced the defense such that the outcome of the trial would have been different. Id. There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). A defendant must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
B. Discussion
Movant first complains that counsel failed to object to the admission of evidence by the government. At trial, the government called gunshop owner Frederick Benjamin Murray as a witness. During Murray's testimony, the government sought admission into evidence of a handgun left in Murray's store, repair invoices generated by Murray and two photo identification spreads. The trial judge admitted the evidence without objection from movant's counsel. (Trial Tr. 125-33). Movant apparently believes that the failure of counsel to object to the admission of the evidence was improper. However, he fails to identify the basis of any objection. This claim fails on that basis alone. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000) (conclusory allegations do not raise constitutional issue in federal habeas proceeding). Moreover, a review of the record reveals that each of the pieces of evidence was properly authenticated by Murray. Thus, there does not appear to be any basis on which counsel could have objected.
Movant next contends that counsel invited hearsay testimony during her cross-examination of Murray. Specifically, he complains of the following questioning:
Q How did you conclude that two of Mr. Dunkins's friends had apparently stolen a firearm? Was anybody else in your shop that day?
A Yes, ma'am.
Q And why did you determine it was Mr. Dunkins's friends that were in the shop that day?
A The events that transpired in the last fifteen minutes were talked about extensively between myself and my partner, and we realized that someone distracted me, and someone distracted him, and the theft took place.
Q And who was your partner?
A I say partner loosely. He's not a business partner. He's a friend of mine helping me that day.
Q So he's a witness we haven't known about until today. You never mentioned him before?
A I may have mentioned him to the police.
Q If it's not in the police report, would you agree that you didn't mention he was there at the time this crime occurred?
A Correct.
Q Would you admit it's probably important for police to contact all witnesses involved in a crime?
A Sure.
Q But yet you didn't tell them that this man was in your shop at the time this happened.
A I may not have. I don't recall.
Q Again, getting back to the conversation you had with Agent Reyes on May 14th, what exactly did you tell him about what transpired, what you allege transpired with Mr. Dunkins?
A I told him that two of his friends had apparently shoplifted a handgun, and that in an inquiry as to what I should do, it was determined that he was a convicted felon and that it was suggested to call Mr. Reyes and let him know.
Q And was the man you earlier called your partner there both times [the defendant came to your shop]?
A No.
Q When was he there?
A When he came back to check the status.
Q What was he doing during the time this happened?
A Filling the Coke machine.
Q Then you tell our investigator that they came in, and all of a sudden now there is another witness. Was there any reason why the police couldn't have known about your friend? What was his name?
A Charles. No, there was no reason.
Q So the first time you ever tell anybody there was another person in the store when you think this may have happened is when you talked to Mr. Saal today, correct? You never told the police about it?
A No, ma'am, I don't believe I did. I wanted to accept the responsibility myself So I did not involve him by telling the police that someone was here that was also observing what was going on that day.
Q What do you mean accepting responsibility for yourself?
A That's my business. He's not an employee of mine. It was rather coincidental that he happened to be there at that time that day. And just because of that coincidence, I didn't feel it required him being involved in the legal processes.
Q Where is your Coke machine?
A Right by the front door.
Q So it's in the same room that you think these two people were in when the gun was shoplifted?
A Actually, it separates that room from the gunsmithing area.
Q Is the Coke machine in the gunsmithing area or retail area?
A In the retail area. He couldn't have seen what was going on.
Q So you never asked him if he heard anything or saw anything? You never talked with him about it after you realized you had been shoplifted?
A Yes, ma'am, I talked with him about it.
Q But you didn't think it was necessary to list him as a witness. So obviously he never told you anything?
A No.
Q Then you talked to Detective Baumann, and you tell him — what Detective Baumann says is that you said you saw that black female take that gun and hand it off to the black male who shoved it in his waistband and you thought you were going to get robbed. So that's not accurate either, is it?
A No, ma'am, I suspected it.
(Trial Tr 135-45). According to movant, this testimony could have instilled within the jurors the belief that another witness was available to identify him. He complains that this substantiation of the government witness' testimony without permitting cross-examination of the missing witness violated his rights. A review of the testimony, however, reveals that Murray stated that the other person in the store with him was not within view of movant and could not identify movant. Moreover, counsel closely questioned Murray as to why this "other person" was not mentioned by him in any of the police reports. Indeed, the whole tone of the questioning by counsel is clearly meant to challenge the reliability of Murray's testimony. Given these circumstances, counsel's failure to object to the testimony was not clearly ineffective.
Movant also maintains that counsel did not seek out character witnesses to testify at sentencing and failed to raise meritorious issues on appeal. He does not, however, identify either the missing witnesses or the appellate issues counsel should have raised. These conclusory allegations are therefore insufficient to merit habeas relief. See Miller, 200 F.3d at 282; Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot even begin to analyze ineffective assistance of counsel claim without affirmative showing of missing evidence or testimony). This claim for relief is without merit and should be denied. SUFFICIENCY OF THE EVIDENCE
Movant also asserts generally that counsel failed to raise "other noticeable errors" on appeal. He does not identify those errors in his first ground for relief Presumably, movant believes counsel should have raised the other grounds for relief that he raises in this action. The Court will address each of those issues separately, rather than under the rubric of ineffective assistance of counsel.
Movant next claims that the evidence adduced at trial was insufficient. He complains that: the government did not present any direct evidence of his guilt, but rather relied on circumstantial evidence and the uncorroborated identification of a single witness.
A. Elements of the Offense
To convict a defendant of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), the government must prove that the defendant: (1) was a convicted felon; (2) who possessed a firearm in or affecting interstate commerce; and (3) who knew that he possessed a firearm. United States v. Daugherty, 264 F.3d 513, 515 (5th Cir. 2001), cert. denied, 534 U.S. 1150, 122 S.Ct. 1113, 151 L.Ed.2d 1007 (2002); United States v. Ferguson, 211 F.3d 878, 885 n. 4 (5th Cir. 2000). The evidence is sufficient if "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
B. Discussion
At trial, gunshop owner Frederick Murray identified movant as a person who entered his store in April of 1999. (Trial Tr. 1 at 23). Murray testified that movant came in with a handgun and asked Murray to order magazines for the gun. Movant left the gun as security for the order, in exchange for a repair invoice ticket Murray filled out. ( Id.). Murray identified the gun, introduced as an exhibit, as a Lorcin handgun, manufactured in California. ( Id. at 24-25). Murray also identified the repair invoice, as well as his chronological log of invoices, before they were introduced as exhibits. ( Id. at 27-28).
Murray spoke with movant several days later when movant called to check on the status of his order. ( Id. at 28). Movant called three or four more times to check on his order. ( Id. at 29). Murray testified that movant came back to his store on April 27 with two other people. Movant again asked about his order. After the three left, Murray noticed that one of the handguns in his inventory was missing. ( Id.). He called the police regarding the theft that day. ( Id. at 30).
Murray testified that he was shown a photo spread by Agent Reyes on approximately June 30. ( Id. at 31). He identified movant as the person who left the Lorcin handgun. ( Id. at 31-32). Murray also identified movant in a subsequent photo spread. ( Id. at 32-33).
ATF Agent Mario Reyes testified that he took a photo spread to Murray. ( Id. at 49). Murray identified Anthony Dunkins. ( Id. at 50). Reyes stated that Murray repeated that identification in a subsequent confirming photo spread. ( Id. at 50-51). The second photo spread used a picture of movant from his county record, which verified his identity with fingerprints. ( Id. at 51-52).
ATF Agent Gil Salinas is an expert trained in the identification of firearms. ( Id. at 62-64). He testified that no semiautomatic handguns are manufactured in Texas. ( Id. at 65). According to Salinas, the Lorcin handgun was manufactured California. As a result, it must have traveled in interstate commerce to reach Texas. ( Id. at 65).
The government presented direct eyewitness testimony of movant's possession of a firearm. As reviewed below, he stipulated to his prior criminal history. Expert testimony at trial established that the firearm at issue had traveled in interstate commerce. This evidence appears sufficient to support movant's conviction. See, e.g., United States v. Hernandez, 972 F.2d 885, 887 (8th Cir. 1992) (conviction for being felon in possession of firearm gun supported by evidence that pawn ticket found in defendant's apartment was receipt for pawn of gun, firearm acquisition receipt book maintained by pawnbroker indicated defendant had pawned gun, pawnbroker identified defendant as person who pawned gun, even though defendant claimed he had pawned gun for friend).
Movant complains the evidence was insufficient because the firearm does not bear his fingerprints and the investigating agent admitted that the only evidence against movant was the word of a single witness. He also maintains the repair invoice submitted was not signed by him and did not match the address information on his driver's license. The testimony of one eyewitness, however, is sufficient to prove the identity of a perpetrator of a crime, even if that witness' testimony is contested. United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996). See also United States v. Ferguson, 211 F.3d 878, 884 (5th Cir.), cert. denied, 531 U.S. 909, 121 S.Ct. 258, 148 L.Ed.2d 187 (2000) (identity may be proved through inference and circumstantial evidence). Moreover, direct evidence of firearm possession is not required to support a conviction. United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998) (possession may be actual or constructive and proved by circumstantial evidence). Accordingly, the Court concludes that the evidence against movant was sufficient to support his conviction. This ground for relief should be denied. PROSECUTORIAL MISCONDUCT
The government spends considerable time, and provides the affidavit of defense counsel, in rebuttal of a claim they characterize as an attack on defense counsel's failure "to present contradictory evidence indicating that it was not the defendant who brought the gun into the shop." (Response at 10). Movant's reply is largely dedicated to an attack on the sufficiency of counsel's affidavit. However, a careful examination of the original motion submitted in this action reveals no indication by movant that he is asserting such a claim. Accordingly, the Court does not address the validity of this claim or movant's attack on counsel's affidavit.
Movant also complains the prosecutor acted improperly during trial. Specifically, he accuses the prosecutor of: (1) leading a witness; (2) introducing evidence unsupported by forensic analysis; (3) introducing an unverified exhibit; and (4) failing to disclose favorable evidence.
Movant first claims that the prosecutor improperly lead one of the witnesses. In support, he points generally to one page of transcript of the trial testimony of Frederick Murray. The Court has reviewed that testimony and finds the prosecutor's questioning did not improperly suggest answers to the witness. This allegation is, therefore, without merit.
Movant also accuses the prosecutor of introducing evidence unsupported by forensic analysis. Specifically, he complains that the gun he was accused of possessing was introduced as an exhibit, despite the fact that no fingerprint testing was done to establish his ownership of the gun. ATF Agent Reyes explained in response to defense counsel's questioning that fingerprinting was not done because the gun had been handled by numerous people at numerous times. (Trial Tr. 1 at 61). The ownership of the gun was sufficiently authenticated by Murray's testimony that movant left the gun as security for his order of magazines. ( Id. at 23).
Movant further alleges the prosecutor erred by introducing an unverified exhibit. According to movant, the repair invoice ticket introduced during Murray's testimony contained neither his handwriting nor his signature. The Court first notes that an invoice prepared by Murray would not necessarily contain any notation by movant. Moreover, the Court has already concluded that the admission of this exhibit was sufficiently authenticated by the testimony of Murray. Thus, movant has failed to establish any misconduct on the part of the prosecutor.
Movant last claims that the prosecutor failed to disclose that Murray was in violation of federal law when he agreed to hold movant's gun as security for magazines ordered by movant. According to movant, federal law prohibits a licensed dealer from transferring, holding, or accepting a firearm without contacting the "national instant criminal background check system." (Motion at 9.C). This argument fails for at least two reasons. First, movant has not identified, nor is the Court aware of, the federal law which was allegedly violated by Murray. Second, the prosecutor was under a duty only to disclose evidence favorable to movant that was material to either his guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); United States v. Brown, 303 F.3d 582, 593 (5th Cir. 2002). The violation of federal law alleged by movant against Murray was neither favorable to him nor material to either his guilt or punishment. This claim for relief should be denied.
PERJURED TESTIMONY
Movant further maintains the evidence against him was supported by perjured testimony. In order to obtain post-conviction relief based on the use of perjured testimony, movant must show that: (1) the testimony was actually false; (2) the prosecution knew it was false; and (3) the evidence was material. Chambers v. Johnson, 218 F.3d 360, 363-64 (5th Cir.), cert. denied, 531 U.S. 1002, 121 S.Ct. 508, 148 L.Ed.2d 473 (2000) ( citing Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).
Movant first complains that Murray contradicted himself when he testified that he called the police to complain of a gun theft on April 12, the day the firearm was left in his shop, but also testified that it was not until April 27 that he noticed a handgun was missing. Movant further maintains that Murray testified that movant was in his store on May 4, yet movant was confined in the Dallas County Jail on that date. These characterizations of Murray's testimony are clearly incorrect. As reviewed above, Murray testified that he called the police on April 27, immediately following movant's second visit to his gunshop, when he noticed a handgun missing.
Movant also challenges Murray's testimony that he wrote down on the repair invoice address information from a driver's license handed to him by movant, in light of the fact that movant's driver's license shows an address different from that on the invoice. However, a careful review of the testimony shows only that Murray stated he "wrote up a repair invoice ticket with the driver's license that [movant] had handed me." (Trial Tr. 1 at 23). The invoice included a name, address and phone number, as well as the make, model, caliber and serial number of the gun left. ( Id. at 24). Murray must, therefore, have relied on other sources of information beyond a driver's license to create the invoice. Thus, it is not clear that Murray's testimony was false. Moreover, movant provides no evidence to support a conclusion that the prosecutor knew the testimony was perjured. He has not, therefore, shown that he is entitled to relief
Finally, movant alleges generally that the testimony of Agent Reyes was perjured. He does not, however, identify the testimony at issue or provide any information casting the truthfulness of that testimony into doubt. Movant has failed to show that he is entitled to relief and this claim should therefore be denied.
SELF-INCRIMINATION
Movant next argues he was compelled to sign a stipulation that he was a convicted felon. He maintains that he was not informed before signing the stipulation that it would be used at trial to establish one of the elements of the charged offense. According to movant, this was a violation of his right against self-incrimination.
The stipulation of facts necessary to a conviction may constitute self-incrimination. United States v. Robertson, 698 F.2d 703, 709 (5th Cir. 1983). The Court notes, however, that movant does not identify the compulsion or coercion used to induce him to sign the stipulation. This omission alone renders this claim conclusory and insufficient to merit relief Moreover, the trial judge questioned movant regarding the stipulation in open court:
THE COURT: Mr. Hamilton handed me a stipulation which reads as follows: "The undersigned agree the following facts are true and correct and to be submitted to the jury in this case. Prior to April 29, 1999, the defendant, Anthony Verdello Dunkins, had been convicted of a crime of imprisonment exceeding one year." And there is a signature below that which reads Dunkins, Anthony.
Mr. Dunkins, did you sign the original of this document?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand by signing this document if this is presented to the jury the jury may take this as evidence that you have previously before April 12, 1999, been convicted of a felony crime?
THE DEFENDANT: Yes.
THE COURT: And you want to allow this stipulation to be presented to the jury as evidence of that fact?
THE WITNESS: Yes, sir.
(Trial Tr. 1 at 12-13). This colloquy clearly reveals that movant understood the stipulation and that it could be used at trial to prove he was a felon. The Court further notes that movant has a lengthy criminal history, including felony convictions for unauthorized use of a motor vehicle, robbery, possession of a controlled substance, and aggravated robbery with a deadly weapon. (Presentence Report ¶¶ 25-29). Given that history, entry of a stipulation that movant was a felon seems eminently reasonable. This claim is clearly without merit and should be denied.
IMPROPER IDENTIFICATION
Movant also contends that he was identified as the result of an illegal photo spread. In support he points to alleged inconsistencies in the testimony of Murray and Special Agent Reyes as to the reason for Murray viewing a second photo spread. Movant also claims that both the second photo spread and Murray's in-court identification of him were improper because he was obviously different from the other choices presented.
Identification evidence is excluded only if the identification procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." United States v. Burbridge, 252 F.3d 775, 780 (5th Cir. 2001) ( quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). The propriety of the identification is determined under a two-step analysis. First, the court determines whether the identification procedure was impermissibly suggestive. If so, the court determines whether, under the totality of the circumstances, the suggestiveness led to a substantial likelihood of irreparable misidentification. United States v. Fletcher, 121 F.3d 187, 194 (5th Cir. 1997).
At trial, Murray testified that the purpose of a photo spread is "to identify someone." (Trial Tr. 1 at 31). Reyes testified that the purpose of the second photo spread was confirmation. ( Id. at 50). The Court does not see this testimony as inconsistent. The Court has also reviewed the second photo spread, introduced at trial as Government Exhibit 5. The six persons pictured are all males of the same race, the same approximate age, with similar hairstyles and facial hair. The Court therefore concludes that the photo spread was not impermissibly suggestive. See United States v. Curry, 187 F.3d 762, 768-69 (7th Cir. 1999) (lineup of six men who appear to be close in age, of the same race, with similar hair styles and facial hair, and wearing identical baggy clothing not suggestive); Salam v. Lockhart, 874 F.2d 525, 529 (8th Cir. 1989) (photographic display not suggestive where individuals pictured were of same race, possessed similar physical features, and were alike in size, age, and dress). This ground for relief should be denied.
CONFRONTATION CLAUSE
Movant further asserts that his confrontation clause rights were violated when his attorney failed to object to the hearsay testimony of Murray. The Court has already concluded that movant's counsel did not err in failing to object to the testimony of Murray. This claim is therefore without merit.
ILLEGAL SENTENCE
Movant next claims that his sentence is illegal. In support, he points to the portion of the sentencing transcript in which the trial judge imposed a partially concurrent sentence. (Sentencing Tr. at 10-11). Movant does not identify, however, how the imposition of a partially concurrent sentence violates the law. This conclusory allegation does not raise a constitutional issue. Miller, 200 F.3d at 282.
DEFECTIVE INDICTMENT
Movant finally complains that the indictment was defective because it failed to charge the requisite substantial effect on interstate commerce. An indictment is sufficient if it contains the elements of the offense, informs the defendant of the charge he must be prepared to meet, and enables the accused to plead acquittal or conviction as a bar to future prosecutions. United States v. Shelton, 937 F.2d 140, 142 (5th Cir. 1991); United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986). Section 922(g)(1) prohibits any person convicted of a felony from "possess[ing] in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g); Daugherty, 264 F.3d at 515. The indictment states:
On or about April 12, 1999, in the Dallas Division of the Northern District of Texas, defendant ANTHONY VERDELLO DUNKINS, having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and unlawfully possess in and affecting commerce a firearm, to wit: a Lorcin, Model L380, .380 caliber semi-automatic pistol, serial number 090954.
Indictment at 1. Clearly, movant's indictment tracks the language of the statue, thus fully informing him of the elements of the offense and the charge he faced. The use of the phrase "in and affecting commerce" is drawn directly from the statute and does not render the indictment defective for failing to charge that his possession had a substantial effect on interstate commerce. See United States v. Gresham, 118 F.3d 258, 264-65 (5th Cir. 1997) (because "in or affecting commerce" element of section 922(g) requires only "minimal nexus" between firearm and interstate commerce, indictment not defective for failing to charge a "substantial effect" on interstate commerce); Shelton, 937 F.2d at 142 (indictment alleging firearm had "moved in commerce, and affecting commerce" sufficiently alleged connection with interstate commerce). This ground for relief should be denied.
RECOMMENDATION
The motion to correct, vacate, or set aside sentence should be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from obtaining a de novo determination by the District Court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation 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 accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).