Opinion
CIVIL ACTION NO. 4:01-CV-993-A.
May 20, 2002
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 under the provisions of Title 28 of the United States Code, § 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:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Bui Phu Xuan, TDCJ-ID #830601, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Clements Unit in Amarillo, Texas.
In the state courts, petitioner was referred to as "Phu Xuan Bui" or "Bui" (State Habeas R. at 49; 3 Rep. R. 3.) This court will also refer to petitioner as "Bui."
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Bui was estranged from his common-law wife, Vickie Burrell. (5 Rep. R. at 141-47.) On February 26, 1991, Gioi Nguyen was at Burrell's apartment waiting for her to get ready for their date. ( Id. at 149-51.) Bui came to Burrell's apartment and, after seeing Nguyen through the window blinds, kicked the door in and hit Burrell in the face. ( Id. at 152.) Nguyen fled out a window, and Bui threatened Burrell with a steak knife while asking if she had slept with Nguyen. ( Id. at 152-53.) Burrell said she had not, and Bui left the apartment after telling Burrell that he would kill Nguyen. ( Id. at 153-54.) Bui tracked Nguyen down at his home and repeatedly stabbed him in his groin, killing him. (4 Rep. R. at 67; 6 Rep. R. at 28.) Bui then called Sheila Gifford, Burrell's friend, and told her that he had killed Nguyen after "stabb[ing] him about 14 times and cut[ting] off his balls and [eating] them." (4 Rep. R. at 241.) After Bui was arrested based on Burrell's report to the police, Bui's bloody knife and clothes were found in his car after Bui told police where to find the knife. ( Id. at 84-92, 126, 135-43, 156-59.)
Bui was indicted for murder. (State Habeas R. at 49.) While in jail awaiting trial, Bui threatened a fellow inmate, Khai Truong, that he would kill Truong like he had killed "this other guy" by stabbing him and "cut[ting] [his] penis off and feed[ing] it to the dogs." (5 Rep. R. at 23.) After two trials ended in mistrials, a third jury found him guilty and assessed punishment at 99 years' confinement. (Clerk R. at 113, 118; State Habeas R. at 51.) Bui appealed, arguing that trial counsel was constitutionally ineffective and that jury misconduct had occurred during the trial. (Appellant's Br. at 5.) The Second District Court of Appeals affirmed the judgment, the Texas Court of Criminal Appeals denied Bui's petition for discretionary review, and the Supreme Court denied his petition for certiorari. Bui v. State, No. 2-98-326-CR (Tex.App. — Fort Worth June 1, 2000, pet. ref'd) (not designated for publication), cert. denied, 532 U.S. 928 (2001). Bui filed one state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Bui, No. 50,565-01 (Tex.Crim.App. Nov. 7, 2001) (not designated for publication). Bui filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 29, 2001. 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).
D. ISSUES
Bui raises four issues:
1. Trial counsel was constitutionally ineffective.
2. The jury committed misconduct during the trial.
3. The police improperly gave him a Miranda warning because he did not understand English.
4. The State's retrial, after two prior mistrials, violated the Double Jeopardy Clause.
E. RULE 5 STATEMENT
Cockrell argues that one of Bui's allegations regarding his ineffective-assistance-of-counsel claim has not been exhausted and asserts that it has been procedurally defaulted; however, Cockrell believes that Bui's remaining allegations have been properly exhausted.F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody under a state court judgment 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 United States Supreme Court 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 precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. 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. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90.
Bui's complaints about counsel were reviewed and rejected during state collateral-review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254 (d).
Although Bui raised ineffective assistance of counsel in his direct appeal, the allegations supporting the claim are not the same allegations Bui raises in the instant petition. (Appellant Br. at 9.)
Bui asserts that trial counsel was constitutionally ineffective because he:
1. did not seek to suppress Gifford's and Truong's testimony;
2. did not "check" all statements made against Bui at trial;
3. did not explain that Bui should accept the State's plea-bargain offer;
4. failed to consult with Bui about the case;
5. failed to disqualify himself based on his age; and
6. failed to investigate the hospital's medical treatment of the victim as a possible cause of Nguyen's death.
For the following reasons, Bui has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Bui first asserts that counsel was ineffective for failing to suppress Truong's and Gifford's testimony against him because it was inadmissible hearsay. (Pet'r Mem. at 1.) Truong's and Gifford's testimony that Bui had admitted to the killing was not hearsay. TEX. R. EVID. 801(e)(2)(A); Trevino v. State, 991 S.W.2d 849, 853 (Tex.Crim.App. 1999). Thus, counsel cannot be held deficient for failing to seek to exclude their statements on the basis that they were hearsay. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
Bui next argues that counsel was ineffective for failing to "check" Truong's statement before trial. (Pet'r Mem. at 1; 5 Rep. R. at 11-15.) It seems Bui is focusing on the fact that although counsel stated he did not have notice of Truong's statement before trial, the State represented that counsel had declined a copy of Truong's statement when it was offered to him. (5 Rep. R. at 12-13; Pet'r Reply at 4.) Bui fails to explain how he was prejudiced by counsel's alleged failure to "check" Truong's statement or point out what would have been discovered in such an investigation. In order to establish that counsel was ineffective due to a failure to investigate the case or to discover and present evidence, Bui must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp.2d 661, 691 (S.D. Tex. 2001). Bui's conclusory allegation that his counsel was ineffective for failing to investigate Truong's statement fails to meet his burden of specificity.
Likewise, Bui's allegation that counsel was ineffective based on his age is also conclusory. (Pet'r Mem. at 1.) Bui does not identify how counsel's age affected his representation; thus, this claim cannot support habeas relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
Bui contends that counsel was ineffective for failing to adequately explain the State's plea-bargain offer, which would have given Bui five years deferred adjudication community supervision in exchange for his guilty plea. (Pet'r Mem. at 1; Pet'r Reply at 3.) In a pretrial petition for habeas corpus seeking release on bond, counsel represented that the State had offered Bui a plea bargain: "The prosecution has offered to recommend that a finding of guilt be deferred and that [Bui] be placed on probation for 5 years if [Bui] would plead guilty. [Bui] sincerely believes he is not guilty, and requests a speedy trial." (Clerk R. at 159.) Indeed, Bui's trial strategy dramatically changed for his third trial. In his first two trials, Bui admitted killing Nguyen, but asserted he killed in self-defense; however, in his third trial, Bui denied killing Nguyen at all. (10 Rep. R. at Ct. Ex. 1.) But Bui cannot establish that he would have accepted the plea-bargain offer and pleaded guilty if he had known what the plea bargain actually meant. Bui's consistent position during the trial, including the punishment phase when he argued that he did not have the requisite intent, was that he was not guilty of murder. (4 Rep. R. at 19-22; 8 Rep. R. at 13.) Indeed, in the instant petition, Bui continues to maintain his innocence by proclaiming that he "is not a murderer." (Pet'r Mem. at 2.) His belated claim that he would have pleaded guilty lacks credibility and cannot show deficient performance or prejudice. Keats v. United States, 856 F. Supp. 162, 165 (S.D.N.Y. 1994), aff'd, 50 F.3d 3 (2d Cir. 1995); see also Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991), cert. denied, 505 U.S. 1223 (1992); Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991); cf. United States v. Faubion, 19 F.3d 226, 229-30 (5th Cir. 1994) (holding defendant did not show deficient performance for failing to seek plea-bargain offer because no evidence showed pleading guilty would have resulted in any leniency by sentencing judge).
Bui next argues that counsel was ineffective for spending an insufficient amount of time with him before the trial in order to prepare and discuss trial strategy. (Pet'r Mem. at 1; Pet'r Reply at 3.) Length of time spent in consultation, without more, does not establish that counsel was ineffective. Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980). Thus, it is not enough to merely show that counsel first met with Bui six weeks before trial. Id.
In his last attack on counsel's trial representation, Bui argues that counsel should have investigated the hospital's treatment of Nguyen to "corroborate that [Bui] is not a murderer" (Pet'r Mem. at 2.) Cockrell asserts that this claim was not raised in the state courts and is, thus, unexhausted and procedurally defaulted from this court's review. (Resp't Answer at 14-16.) However, Bui raised this claim in his state habeas corpus application. (State Habeas R. at 46.) Thus, it was properly exhausted in the state courts and is ripe for this court's review.
After Nguyen was found at his home, he was transported to a hospital where he died. (4 Rep. R. at 70, 97; 6 Rep. R. at 35-36.) Bui seems to suggest that counsel should have investigated whether the hospital's negligence contributed to Nguyen's death. In light of the medical examiners testimony that the severe abdominal stab wounds and resultant blood loss were the cause of Nguyen's death, such an investigation would have been fruitless. (6 Rep. R. at 27-38.) This court cannot hold counsel defective for failing to do a futile act. See, e.g., Carter, 131 F.3d at 464; Lauti, 102 F.3d at 170; Marshall, 835 F.2d at 1103. Further, Bui has failed to specifically allege what such an investigation would have revealed and what specific evidence would have been disclosed, which renders his claim insufficient to support habeas corpus relief. Anderson, 18 F.3d at 1221.
3. Jury Misconduct
Bui contends that his trial was fundamentally unfair when the jury discussed the case outside deliberations and considered evidence that was not in the record. (Pet'r Mem. at 3.) While cross-examining Bui's mother and sister during the punishment phase of trial, the State asked whether they had heard that Bui had been involved in selling cocaine, which they denied. (7 Rep. R. at 39, 51.) After final arguments on punishment, Bui moved for a mistrial based on jury misconduct. (8 Rep. R. at 19-20.) ln a hearing on Bui's motion, Vern Reese, a chaplain who worked at the Tarrant County Jail, testified that on the evening before final arguments on punishment began, he saw three jurors he recognized from Bui's trial walking to a parking lot and discussing the case. He stated that he overheard one of the jurors remark to the jury foreman that once she heard of Bui's drug dealing, "that did it for me." She then asked if the maximum sentence they could give him was 99 years. ( Id. at 20-24.) The trial court denied Bui's motion. ( Id. at 32.) After the jury assessed punishment at 99 years' confinement, Bui moved for a new trial based on the jury's misconduct. (9 Rep. R. at 3; Clerk R. at 219.) At a hearing on the motion for new trial, the jury foreman testified that he heard the jurors comments about drug dealing and the maximum punishment, but independently reached his decision based on the evidence presented, that the other juror's comments did not affect him, and that either he or the third juror reminded the commenting juror about the court's instructions against discussing the case. (9 Rep. R. at 14-19.) The trial court denied Bui's motion for new trial. ( Id. at 28.)
The Constitution guarantees the right to trial by an impartial jury. U.S. CONST. amend. VI. A federal court must initially presume that a jury was impartial. De La Rosa v. Texas, 743 F.2d 299, 306 (5th Cir. 1984), cert. denied, 470 U.S. 1065 (1985). However, a presumption of prejudice arises when an outside influence on the jury, such as evidence that was not admitted before the jury, is brought to the attention of the trial court, which the government must rebut by proving the harmlessness of the breach. Drew v. Collins, 964 F.2d 411, 415 (9th Cir. 1992), cert. denied, 509 U.S. 925 (1993); United States v. Luffred, 911 F.2d 1011, 1014 (5th Cir. 1990). When it appears one or more of the jurors themselves have violated an instruction of the court, the presumption does not arise, and the defendant must show that the jury misconduct prejudiced his right to a fair trial. Drew, 964 F.2d at 415-16. In this case, both scenarios are presented: the jury members themselves violated the court's instructions by discussing the case outside of deliberations and they considered evidence that Bui dealt cocaine, which was not admitted into evidence.
The intermediate court of appeals held that Bui failed to show that the trial court abused its discretion in denying him a new trial:
[Bui's] motion did not present competent evidence that the jury received other evidence during deliberations. While the trial court did instruct the jurors not to converse about the case, we must defer to the trial court's implied finding that the jury foreman was not influenced by the juror's comments because its finding turns on a determination of the credibility and demeanor of the witness. Accordingly, because [Bui] failed to establish that the jury received other evidence during deliberations or that he did not receive a fair trial, the trial court did not abuse its discretion in overruling his motion for new trial.Bui, No. 2-98-326-CR, slip op. at 7-8 (citations omitted). Because the Court of Criminal Appeals denied Bui's petition for discretionary review and subsequently denied Bui's state habeas corpus application raising this claim, this court should "look through" to the last clear state decision on the matter by the intermediate appellate court. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999) (quoting Loft v. Hargett, 80 F.3d 161, 164 (5th Cir. 1996)), cert. denied, 529 U.S. 1027 (2000). This last clear decision is entitled to a presumption of correctness. Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir. 1999). Indeed, based on the jury foreman's testimony, there is no indication that the improper discussion among the jurors about the suggestion that Bui had dealt drugs in the past resulted in an unfair trial prejudicial to Bui. E.g., Drew, 964 F.2d at 416; United States v. Anello, 765 F.2d 253, 258 (1st Cir.), cert. denied, 474 U.S. 996 (1985).
4. Miranda Warnings
Bui also argues that because he did not understand the Miranda warnings he was given before his knife and bloody clothes were discovered in his car, his Fourth Amendment rights were violated when that evidence was admitted at trial. (Pet'r Mem. at 4; Pet'r Reply at 5.) Federal courts have no authority to review a state court's application of Fourth-Amendment principles in habeas corpus proceedings unless the petitioner was denied a full and fair opportunity to litigate his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). The trial court conducted a hearing on Bui's motion to suppress the seized evidence and denied the motion. (2 Rep. R. 45-169, 174.) This claim was also raised in Bui's state habeas corpus application. (State Habeas R. at 15.) Because Bui was provided a full and fair opportunity to litigate his Fourth-Amendment claim in state court, it is barred from federal habeas corpus review.
If, however, Bui is actually attacking the admission of his statements that were obtained in violation of Miranda, it is not barred by Stone v. Powell. Withrow v. Williams, 507 U.S. 680, 683 (1993). At the hearing on Bui's motion to suppress, the questioning police officer testified that he read Bui his Miranda rights before asking him where the knife was. (2 Rep. R. at 56.) Bui indicated that he understood those warnings and told the police where the knife was located. ( Id. at 57-58.) The trial court made findings of fact and conclusions of law and found that Bui "did not invoke his right to an attorney before or during the making of said statements," and that Bui "had sufficient understanding of the English language to understand the nature of the oral statements, their meaning[,] and effect." (Clerk R. at 194-95.) These findings and credibility choices are entitled to a presumption of correctness, which is not overcome by Bui's conclusory attestations that he did not understand the Miranda warning. Green v. Johnson, 160 F.3d 1029, 1045-46 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999); see also Marshall v. Lonberger, 459 U.S. 422, 434-35 (1983). Thus, neither the Fourth Amendment nor the Fifth Amendment were violated.
5. Double Jeopardy
In his final ground, Bui asserts that his second and third trials violated the Double Jeopardy Clause. (Pet'r Mem. at 5; Pet'r Reply at 5-6.) Bui's first trial ended in a mistrial after the jury was unable to reach a verdict. (Clerk R. at 113.) Bui consented to the mistrial. ( Id.) His second trial also ended in a mistrial after the State promised to help Burrell with two outstanding warrants for "check cases," which was not disclosed to Bui before trial. ( Id. at 118, 133-34.) The second mistrial was granted on Bui's motion. ( Id. at 134.)
The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. This clause protects against: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 696 (1993). If a trial ends in a mistrial after the jury cannot agree on a verdict, jeopardy does not attach, and a retrial is not barred. Richardson v. United States, 468 U.S. 317, 325-26 (1984). Thus, Bui's second trial did not violate the Double Jeopardy Clause.
Regarding Bui's third trial, a mistrial granted at the defendant's request in a criminal case usually does not implicate double-jeopardy prohibitions and does not bar further prosecution for the same offense in a new proceeding. United States v. Jorn, 400 U.S. 470, 485 (1971). A defendant's motion for mistrial is viewed as a deliberate election on his part to forego the right to have his guilt or innocence determined before the first trier of fact. Oregon v. Kennedy, 456 U.S. 667, 676 (1982). When a mistrial is declared because of improper actions of the prosecutor, however, the double-jeopardy prohibition may bar further prosecution even if the defendant has consented to the mistrial. See id. at 673 (stating right to complete trial before first jury would be "hollow shell" if all motions for mistrial were held to prevent raising double-jeopardy bar). Indeed, the Double Jeopardy Clause bars successive prosecutions for the same offense when the earlier trial was terminated at the defendant's request because the State deliberately provoked the defendant's motion for mistrial. Id. at 679.
In this case, the trial court found that "[t]he prosecutor should not have known that the objectionable event for which he was responsible would require the trial court to declare a mistrial at [Bui's] request." (Clerk R. at 135.) This finding is presumed correct. Marshall, 459 U.S. at 434-35. Because the State did not deliberately provoke Bui's motion for mistrial during his second trial, his third trial was not double-jeopardy barred. E.g., United States v. Nichols, 977 F.2d 972, 975 (5th Cir. 1992), cert. denied, 510 U.S. 833 (1993).
6. Summary
In sum, Bui is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Bui was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Bui'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 10, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 10, 2002 to serve and file, not merely place in the mail, 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, the 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, is returned to the docket of the United States District Judge.