Opinion
CIVIL ACTION NO. 4:03-CV-581-Y
October 24, 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:
I. 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 Raul Antonio Felan, TDCJ-ID #905570, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently housed at the Clements Unit in Amarillo, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
Felan was charged by indictment in cause no. 0687399D in the 371st Judicial District Court in Tarrant County, Texas, with aggravated sexual assault of J.L, a child younger than fourteen years of age. (Clerk's R. at 3.) The indictment also included enhancement and habitual offender allegations. (Id.) Felan's trial commenced on January 11, 2000.At trial, J.L. testified that she met Felan, who told her his name was Tony Comacho, in the Fall of 1997, when she was thirteen years old. (3Rep. R. at 16-19.) J.L. told Felan she was sixteen years old. (Id. at 20.) Felan was twenty-eight years old at the time. (Id. at 108.) The two began dating, and, during their five-month relationship, Felan supplied J.L. with alcohol and drugs and engaged in sexual relations with her on numerous occasions in his truck, his mother's house, and in motels. (Id. at 25-43, 68-69, 108.) Felan did not testify at trial.
Based on J.L.'s testimony and the other evidence adduced at trial, the jury found Felan guilty of aggravated sexual assault and assessed his punishment at sixty years' imprisonment. (Clerk's R. at 72, 76.) Felan appealed his conviction and sentence, but the Second Court of Appeals affirmed the trial court's judgment on April 12, 2001. Felan v. State, 44S.W.3d 249 (Tex.App.-Fort Worth 2001, pet. ref' d). On May 22, 2002, the Texas Court of Criminal Appeals refused Felan's petition for discretionary review. Felan v. State, No. 1419-01 (Tex.Crim.App. May 22, 2002) (not designated for publication). Thereafter, Felan filed a state application for writ of habeas corpus challenging his conviction and sentence on May 5, 2003, which was denied without written order by the Texas Court of Criminal Appeals on July 30, 2003. Ex parte Felan, No. 56, 016-01 at cover. He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on June 4, 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 Felan has filed a reply.
D. ISSUES
In five grounds, Felan raises the following claims:
(1) His conviction was obtained by the prosecution's failure to tell him about evidence favorable to the defense;
(2) He was denied effective assistance of trial counsel;
(3) The jury charge in the sentencing phase was unconstitutional and a misstatement of the law;
(4) He was denied due process and his right to present a defense by the denial of his motion for continuance; and
(5) There was no evidence or insufficient evidence to support his conviction. (Pet. at 7-8 Attachs.)
E. RULE 5 STATEMENT
Dretke believes that Felan has sufficiently exhausted his state remedies on the issues presented and thus does not move for dismissal on exhaustion grounds. (Resp't Answer at 2.)F. 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 rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, 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 of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 (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, as the court did here, 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. Failure to Divulge Favorable Evidence
Under his first ground, Felan claims his conviction was "obtained by the prosecution's failure to tell [him] about evidence favorable to [the defense]." (Pet. at 7.) According to Felan, "the jury was only allowed to hear one side of the case, dictated by the prosecution," and "was excused anytime anything favorable to [his] defense arose." (Id.) More specifically, Felan argues that he was denied due process when the trial court prevented him from introducing relevant impeachment testimony regarding J.L.'s credibility. (Pet'r Reply at 2.) Felan does not point out the precise testimony in question, however, on appeal he complained about the exclusion of testimony by the investigating officer that he believed J.L.'s statement to him to be truthful as it pertained to her relationship with Felan, but untruthful as it pertained to Felan's alleged sexual assault of another girl, V.R, in her presence. (3Rep. R. at 116-22.) Felan, 44 S.W.3d at 252-55. The trial court excluded the testimony on relevancy grounds. (Id. at 122.) Felan argues that exclusion of the evidence prevented him from presenting a full defense. (Pet'r Reply at 3.)
Although Felan couches his claim as a Brady violation, the claim is more accurately construed as a claim regarding exclusion of the proffered testimony and is treated as such.
The Constitution guarantees a criminal defendant a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); California v. Trombetta, 467 U.S. 479, 485 (1984). However, this does not mean that a defendant enjoys an absolute right to present evidence in furtherance of his defense at trial. See Montana v. Egelhoff, 518 U.S. 37, 62 (1996). The Constitution leaves to state trial judges "wide latitude" to exclude evidence that is irrelevant or only marginally relevant. See Crane, 476 U.S. at 689-90.
At trial, Felan argued the testimony was admissible to show that J.L. harbored "animus" toward him and to establish "just one more in a series of a long line of lies that J.L." told people in authority. (3Rep. R. at 121.) The state trial judge ruled that the testimony was not relevant for those purposes and, thus, inadmissible. (Id. at 122.) The Second Court of Appeals held the trial court acted within its discretion in excluding the testimony because the testimony was inadmissible under Texas Rule of Evidence 608 to impeach J.L.'s general credibility, because it failed to show animus or bias on J.L.'s part against Felan, and because it was irrelevant and thus inadmissible under Texas Rule of Evidence 401.
Felan has failed to demonstrate that this decision is contrary to clearly established federal law on the issue. The evidence did not necessarily support Felan's defense at trial, which consisted primarily of an attempt to discredit J.L. and to portray himself as a person who does not abuse drugs or pursue relationships with "young girls." (3Rep. R. at 127, 133.) Further, as noted by the Second Court of Appeals, the excluded testimony did not show that J.L. held animus or bias against Felan, but, instead, "could only be fairly read to show animus toward V.R." Additionally, J.L. admitted during her testimony that she lied about her age to Felan and that she lied about her relationship with Felan to various family members. (3Rep. R. at 63-64.) Thus, even if the trial court improperly excluded the evidence, Felan cannot establish that exclusion of the evidence detracted from the fairness of the proceedings-i.e., that the evidence was "crucial, critical, and highly significant." See Porretto v. Stalder, 834 F.2d 461, 465 (1987).
3. Ineffective Assistance of Counsel
Under his second ground, Felan contends he received ineffective assistance of trial counsel because counsel (1) failed to investigate the case, prepare the case, keep Felan informed, and communicate with Felan before trial, (2) advised Felan against taking plea bargain offers, (3) "devised a plan of his own" during trial that Felan strongly opposed, and (4) failed to subpoena key witnesses for trial. (Pet. at 7-8.)
Felan asserted his ineffective assistance claims in his state writ application filed on May 5, 2003, however the state provided proof that Felan's trial counsel died in October 2002. The state argued in the state court, as it does here, that counsel's death prejudiced its ability to respond to Felan's claims, and, thus, the claims should be barred by laches. (Resp't Answer at 9.) Apparently, the state courts accepted this argument. (State Habeas R. at 16-17, 24.) Felan asserts that he had no knowledge of the fact of counsel's death, having been incarcerated since January 2000, and that he "has remained occupied and diligent" in pursuing his legal remedies. (Pet'r Reply at 4.)
As noted by Dretke, in the context of federal writ practice, the doctrine of laches has been codified under Rule 9 of the Rules Governing Section 2254 Cases. Pursuant to Rule 9(a), a federal district court may dismiss a habeas petition upon a showing by the state that it has been prejudiced in its ability to respond to the petition by the petitioner's delay in bringing his claims. Ruiz v. Smith, 142 F.3d 445 (Table), 1998 WL 225029, at* 1 (9th Cir. 1998) (not designated for publication). If the state shows prejudice, then the burden shifts to the petitioner to show that the state actually is not prejudiced or that the delay is based on grounds of which the petitioner could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred. See id.
Rule 9(a) states:
(a) Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petition shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
Although courts have held that the fact that a petitioner' s trial counsel is deceased may in fact prejudice the government's ability to respond to the petitioner's ineffective assistance claims, here there was very little delay attributable to Felan. See, e.g., Garrett v. Maggio, 685 F.2d 158, 160 (5th Cir. 1982); Honeycutt v. Ward, 612 F.2d 36, 41-43 (2nd Cir. 1979); Johnson v. Riddle, 562 F.2d 312, 314 (4th Cir. 1978); Hollines v. Estelle, 569 F. Supp. 146, 158 (W.D. Tex. 1983), aff'd, 714 F.2d 136 (5th Cir. 1983). Felan has diligently pursued habeas corpus relief in the state and federal courts. Thus, Felan has not unreasonably delayed raising his claims to justify application of Rule 9.
Felan federal petition was filed within the applicable statute of limitations. 28 U.S.C. § 2244(d).
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST, amend. VI, XIV; Strickland v. Washington, 466 U.S. 668, 684-88 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. Id. 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 687. The intervening death of Felan's trial counsel does not excuse him from satisfying his burden under this standard. See Slevin v. United States, 71 F. Supp.2d 348, 358 n. 9 (S.D.N.Y. 1999), aff'd, 234 F.3d 1263 (2nd Cir. 2000).
As to his first claim, while it is true that an attorney must engage in a reasonable amount of pretrial investigation, the record is silent as to the nature and extent of counsel's investigation into the facts and circumstances of Felan's case. See United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Further, Felan fails to state with specificity what a more thorough investigation would have revealed and how it would have altered the outcome of the trial. See id.
Likewise, Felan's claim that counsel failed to subpoena and call favorable defense witnesses is unsupported by the record. Such complaints are not favored in federal habeas corpus review because the presentation of witness testimony is essentially a matter of strategy, and thus within the trial counsel's domain. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983). However, even assuming counsel was aware of, but made no attempt to contact, the "list" of potential witnesses provided by Felan, Felan has not shown, through affidavit or similar matter, that the witnesses' testimony would have been favorable and that the witnesses would have been willing and able to testify at his trial. Sayre, 238 F.3d at 635-36; Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985); Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981).
Similarly, the choice by counsel to rely upon a certain line of defense to the exclusion of others is largely a strategic or tactical choice. See generally Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th Cir. 1987). In the absence of evidence in the record concerning trial counsel's reasons for pursuing a particular line of defense, or that a different defense would have been both tenable and a better alternative to the defense presented at trial, we presume that Felan's counsel made an informed and conscious strategic decision to pursue the defense that he did. Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983). Felan has not shown that counsel's decision was so ill chosen that it permeated the entire trial with obvious unfairness. Id.
Felan's unsubstantiated allegations as to the remainder of his complaints are insufficient to support an ineffective assistance claim. See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (providing that, absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition, unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value).
4. Jury Charge
Under his third ground, Felan contends the jury charge given in the punishment phase was unconstitutional and a misstatement of Texas law as applied to him because it contained instructions regarding parole and good conduct time when, if convicted, he would be precluded from earning good conduct time. (Pet. at 7.) Article 37.07, § 4 of the Texas Code of Criminal Procedure requires a state trial court to give the following charge during the penalty phase of a noncapital felony case such as Felan's:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (Vernon Supp. 2003).
The charge given in this case mirrors the mandatory language of article 37.07. (Clerk's R. at 71.) A substantively correct instruction concerning the effect of the Texas parole laws does not offend the federal constitution. Galvan v. Cockrell, 293 F.3d 760, 767 (5th Cir. 2002).
5. Motion For Continuance
Under his fourth ground, Felan contends the trial court erroneously denied his motion for continuance. (3Rep. R. at 153-56.) As noted by the Second Court of Appeals, Felan called Rene Davila as his final defense witness. (Id.) Felan, 44S.W.3dat255. When she failed to appear, Felan orally moved for a continuance until 9:00 the following morning. Id. The trial court denied the motion. Felan argues, as he did in state court, that the denial of his oral motion violated his right to present a defense as a matter of due process under the laws of the United States and Texas. (Pet. at 8 Attach.)
The Second Court refused to address the merits of Felan's claim because, as a matter of state law, a motion for continuance must be in writing. See TEX. CODE CRIM. PROC. ANN. art. 29.03 (Vernon 1989); Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App. 1999). Dretke argues that the state court's decision was based on an independent and adequate state law ground, and, thus, federal review is barred. (Resp't Answer at 13.)
Under the procedural-default doctrine, federal courts are precluded from granting habeas relief where the last state court to consider the claims raised by the petitioner expressly and unambiguously based its denial of relief on an independent and adequate state-law procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999). When a state court explicitly relies on a procedural bar, a state prisoner may not obtain federal habeas relief absent a showing of cause for the default and actual prejudice. Coleman, 501 U.S. at 750; Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). A petitioner who fails to satisfy the cause-and-prejudice standard may nonetheless be entitled to habeas relief if he can show that the imposition of the procedural bar would constitute a miscarriage of justice-i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
Felan argues that the state appellate court "incorrectly disregarded its ability to review a denial of a motion for continuance under the Equitable Powers Doctrine." (Pet'r Reply at 7.) This argument, however, does not explain his failure to preserve the matter at the trial court level. See Davis v. Maggio, 706 F.2d 568, 570-71 (5th Cir. 1983). Nor has Felan demonstrated that he was prejudiced by the trial court's denial of his motion for continuance. See Ramirez v. Estelle, 678 F.2d 604, 606 (5th Cir. 1982). The record reflects that Felan did not know the whereabouts of Davila or whether she had, in fact, been served with the subpoena to testify. Furthermore, counsel stated on the record that Davila's testimony would "be somewhat cumulative of that previously given, except that at one time during the time frame in question [Felan] allegedly lived with Davila." (3Rep. R. at 155-56.) Under these circumstances, it cannot be said that the absence of Davila's testimony caused serious prejudice to Felan. Finally, Felan does not allege or make out a compelling case of actual innocence. Because Felan has failed to overcome the procedural bar, federal habeas review of this claim is precluded.
6. Sufficiency of the Evidence
Under his fifth ground, Felan contends there is no evidence or insufficient evidence to support his conviction. Dretke asserts that because Felan raised his sufficiency-of-the-evidence claim for the first time in his state writ application, the claim is procedurally defaulted. (Resp't Answer at 14.)
As a matter of Texas jurisprudence, sufficiency of the evidence may be raised on direct appeal, but is not cognizable on collateral review. See Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986). Felan did not raise the issue on direct appeal, but, instead, raised the issue for the first time in his state writ application. The state habeas court recommended that habeas relief be denied on the basis of the state procedural bar. (State Habeas R. at 24.) See Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). Felan's failure to raise the claim on direct appeal thus constituted a procedural default under state law. See Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994).
As noted under the previous ground, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can satisfy the cause-and-prejudice standard or show that he is actually innocent of the crime. Toward this end, Felan merely argues that, in the absence of any physical or medical evidence of sexual assault, J.L.'s testimony alone is constitutionally insufficient because it was based entirely on J.L.'s credibility, which was "undoubtedly questionable." (Pet'r Reply at 9.) This argument does not explain his failure to properly raise a sufficiency-of-the-evidence claim in state court or demonstrate his innocence. Thus, this claim is also precluded from federal habeas review.
Even if that were not the case, under Texas law in effect when Felan committed the offense, the testimony of a child sexual assault victim alone is sufficient evidence to support a conviction for aggravated sexual assault of a child and need not be corroborated by physical or medical evidence. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3589, 3768 (currently TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 2003)); Mallet v. Texas, 9 S.W.3d 856, 864 (Tex.App.-Fort Worth 2000, no pet.). Moreover, by his argument, Felan raises nothing more than a credibility issue. Under the Jackson v. Virginia standard for measuring legal sufficiency of the evidence, the assessment of the credibility of witnesses is generally beyond the scope of review. Schlup v. Delo, 513 U.S. 298, 330 (1995); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The relevant question is only whether, after 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, 443 U.S. at318-19. Assuming the jury believed J.L.'s testimony, the evidence was sufficient for any rational jury to have found beyond a reasonable doubt all the essential elements of the offense charged.
7. Summary
In summary, the issues presented in grounds four and five are procedurally barred from federal habeas review. As to the remainder of the issues, the state courts' determination of those issues is not contrary to or involve an unreasonable application of federal law or appear to be based on an unreasonable determination of the facts in light of the record as a whole and is entitled to deference and the presumption of correctness.
II. RECOMMENDATION
Felan'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 November 14, 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 November 14, 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.