Opinion
No. 3:01-CV-0511-R
July 11, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background
Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On November 17, 1998, a jury convicted petitioner of "aggravated assault"; "unlawful possession of a controlled substance"; and "unlawful possession of a firearm by a felon." Reporter's Record, Vol. III at 129-30 [hereinafter cited as RR-volume # at page]. The trial court sentenced petitioner to twenty-five years imprisonment for the aggravated-assault conviction and two years imprisonment each for the other two convictions. Id. at 133-38. Melissa Read and Larry Miller represented petitioner at trial. RR-I at 1. John H. Hagler represented him on appeal. (See Appellant's Brief contained within state court record at cover.)
On June 26, 2000, the Court of Appeals for the Fifth District of Texas at Dallas affirmed petitioner's conviction on direct appeal. Marshall v. State, Nos. 05-98-01989-CR, 05-98-01990-CR, 05-98-01991-CR, 2000 WL 816037, at *1 (Tex.App.-Dallas June 26, 2000, no pet. h.) (not designated for publication). On January 31, 2001, the Texas Court of Criminal Appeals denied petitioner's state petition for writ of habeas corpus without written order. Ex Parte Marshall, No. 18,889-02, slip op. at 1 (Tex.Crim.App. Jan. 31, 2001).
In March 2001, petitioner filed the instant petition for federal habeas relief in which he challenges the 1998 convictions and sentences. Respondent thereafter filed an answer and provided the state-court records.
Substantive Issues: Petitioner claims he is being held unlawfully on the following grounds: (1) the State lacked probable cause to arrest him and thus violated his rights under the Fourth Amendment of the United States Constitution; (2) the State convicted him under void indictments and used two void convictions to enhance his sentences; (3) his trial attorneys rendered ineffective assistance in that they (a) failed to make a motion to quash the void indictments; (b) failed to argue that the complaint against him and subsequent police report were based upon untruthfulness; (c) failed to investigate or subpoena witnesses; (d) failed to obtain evidence that would have exonerated petitioner; (e) failed to move for acquittal at the end of trial; and (f) advised him to plead true to the enhancement paragraphs at punishment; and (4) his appellate attorney rendered ineffective assistance in that he (a) failed to fully brief a suppression issue; (b) failed to raise issues relating to the lack of an examining trial and probable cause; and (c) failed to file a motion for new trial that specifically challenged his indictments as void. (Pet. for Writ of Habeas Corpus (Pet.) at 7 and Mem. at 7-9.)
Exhaustion: Respondent contends that petitioner has not sufficiently exhausted his state remedies with respect to Claims 3(b) through (e) and Claims 4(a) and (b). (Answer at 8.) She does not seek dismissal for the failure to exhaust, but rather on the related ground of procedural bar.
II. Procedural Bar
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows "cause" for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. See id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
In this instance, respondent urges the Court to find Claims 3(b) through (e) and Claims 4(a) and (b) procedurally barred for an alleged failure of petitioner to present them to the Texas Court of Criminal Appeals either in a petition for discretionary review or his state writ. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claims procedurally barred. Id.
Petitioner has not presented Claims 3(b) through (e) and Claims 4(a) and (b) to the Texas Court of Criminal Appeals. Were this Court to require him to do so, the claims would be subject to dismissal under the Texas abuse-of-the-writ doctrine, TEX. CODE CRIM. PRO. ANN. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v.Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted), "[Alrticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and... has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law." Id. To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate "(1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524 (quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)).
Texas also has an abuse of writ doctrine specifically applicable to capital cases. See Tex. Code Crim. P. Ann. art. 11.071, § 5(a). No material difference exists between the rules or their analysis. Emery v. Johnson, 139 F.3d 191, 195 n. 3 (5th Cir. 1997). The Court may thus freely cite to either capital or non-capital cases that address the abuse of writ doctrine.
Petitioner has shown no cause for his failure to present Claims 3(b) through (e) and Claims 4(a) and (b) to the Texas Court of Criminal Appeals. He makes no attempt to explain that failure. The Court finds no adequate reason for the failure.
Petitioner has also shown no actual prejudice as a result of the alleged ineffective assistance of counsel. Nor has he demonstrated a need to prevent a miscarriage of justice. The latter exception is "confined to cases of actual innocence, "where the petitioner shows, as a factual matter, that he did not commit the crime of conviction."' Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). Petitioner has not shown that, factually, he did not commit the crimes for which he was convicted. He has thus not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on Claims 3(b) through (e) and Claims 4(a) and (b). For that reason, the Court will not review those claims.
The Court will review petitioner's other claims under the standard of review established on April 24, 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217.
III. Standard of Review
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition. Under 28 U.S.C. § 2254 (d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 122 S.Ct. 194 (2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding."' Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e) (1).
On direct appeal, petitioner argued that the evidence was factually insufficient to support his conviction and that the trial court erred in overruling a pretrial motion to suppress. Marshall v. State, Nos. 05-98-01989-CR, 05-98-01990-CR, 05-98-01991-CR, 2000 WL 816037, at *1 (Tex.App.-Dallas June 26, 2000, no pet. h.) (not designated for publication). The court of appeals found the evidence factually sufficient to support the convictions. id. at 2-3. It found no error by the trial court in overruling the motion to suppress. Id. at 3-5.
Other than the procedurally barred claims, petitioner raised each of his instant federal claims in his state writ. See Partial S.H. Tr. at 1-8. The trial court submitted findings to the Texas Court of Criminal Appeals regarding the state petition. Supp. S.H. Tr. at 3-8. It found that the State had probable cause to arrest petitioner. Id. at 5. It deferred to the appellate court's decision with respect to the allegation that he had been subjected to an unconstitutional search and seizure. Id. It found the indictments in compliance with Chapter 21 of the Texas Code of Criminal Procedure. Id. It found no ineffective assistance of trial or appellate counsel. id. at 5-6.
S.H. Tr. refers to the state habeas record. "Partial" indicates the designation on the cover page.
The Texas Court of Criminal Appeals denied the state writ without written order. Ex Parte Marshall, No. 18, 889-02, slip op. at 1 (Tex.Crim.App. Jan. 31, 2001). In Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Exparte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). In this instance, therefore, the state court rejected the instant claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254 (d) thus apply.
IV. Examination of the Issues
Petitioner raises the following non-procedurally barred claims: (1) the State lacked probable cause to arrest him and thus violated his rights under the Fourth Amendment of the United States Constitution; (2) the State prosecuted him under three void indictments and used two void convictions to enhance his sentences; (3) his trial attorneys rendered ineffective assistance in that they failed to make a motion to quash his indictments and advised him to plead true to the enhancement paragraphs; and (4) his appellate attorney rendered ineffective assistance in that he failed to file a motion for new trial that specifically challenged the validity of his indictments. (Pet. for Writ of Habeas Corpus (Pet.) at 7 and Mem. at 7-9.)
A. Arrest Without Probable Cause
Petitioner contends that he was arrested without probable cause. He thus argues that his arrest is constitutionally invalid.
A federal court cannot entertain a Fourth Amendment claim brought by a habeas petitioner attacking his state court conviction, if the petitioner had an opportunity for full and fair litigation of that claim in the state trial and appellate courts. Stone v. Powell, 428 U.S. 465, 495 (1976); Jones v. Johnson, 171 F.3d 270, 278 (5th Cir. 1999).
An "opportunity for full and fair litigation" means just that: an opportunity. If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.
Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978). The Fifth Circuit has further held that the bar of Stone applies even when the state court erred in deciding the merits of defendant's Fourth Amendment claim, Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir. 1978), or when a state court makes a procedural error which precludes the presentation of a Fourth Amendment claim, as long as there are no allegations that "the processes provided by a state to fully and fairly litigate [F]ourth [A]mendment claims are routinely or systematically applied in such a way as to prevent the actual litigation of [such] claims on their merits", Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980) (holding that the bar applies even when the state habeas court erroneously refused to consider a Fourth Amendment claim that the trial court had not thoroughly considered).
In this case, petitioner had the opportunity to challenge the legality of the search and arrest at the time of his trial. See TEX. CODE CRIM. PROC. ANN. Arts. 1.05, 14.01, 18.01-18.04, 18.06-18.14, and 38.23. The trial court conducted a hearing on petitioner's motion to suppress evidence. RR-I at 1-28. The State argued that the evidence was lawfully seized as a result of consensual search and that, in any event, petitioner had been placed under arrest and thus the evidence was lawfully seized as a search incident to that arrest. Id. at 28. Without stating its reasoning, the trial court denied the motion to suppress. Id. On direct appeal, petitioner challenged that denial. He has not challenged the legality of his arrest. Nevertheless, his Fourth Amendment challenges are barred from consideration by this Court under Stone, as interpreted by Carver.
B. Void Indictments
Petitioner claims that the State prosecuted him under three void indictments and thus the trial court lacked jurisdiction to convict and sentence him. Petitioner raised this issue in his state writ. When the Texas Court of Criminal Appeals denied that writ it, at least implicitly, found the indictments sufficient.
"The question whether a defective state indictment confers jurisdiction on the state trial court is a matter of state law." McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994). "The sufficiency of a state indictment is not a matter for federal habeas corpus review unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Alexander v. McCotter, 775 F.2d 595, 598 (1985). Federal courts, nevertheless, will not consider claims that a state indictment is insufficient to confer jurisdiction upon the trial court when the jurisdictional issue "was squarely presented to the highest court of the state" and it can reasonably be inferred that that court passed on the merits of the jurisdictional claim. Id. at 598-99. In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). In this instance, the Texas Court of Criminal Appeals passed on the merits of the claimed void indictments when it denied petitioner's state writ. It implicitly found the trial court had jurisdiction over petitioner's cases. This Court will not review that implicit finding. Consequently, this Court will not consider the claim that the State prosecuted petitioner under void indictments.
Petitioner also claims that the State used two prior void convictions to enhance his sentences. He has not, however, shown the prior convictions to be void. Each prior conviction, furthermore, is reflected in a final state judgment. RR-III at 144 (Judgment reflecting felony conviction for unlawful delivery of controlled substance); Trial Court Cause No. F84-74630-RV at 56-57 (Judgment reflecting felony murder conviction). When prior convictions are collaterally attacked, the judgments reflecting those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption. Sones v. Hargett, 61 F.3d 410, 421 n. 19 (5th Cir. 1995) (citing Parke v. Raley, 506 U.S. 20, 29, 524 (1992)). Petitioner has not overcome the presumption of regularity that attends final judgments. The copies of the final judgments clearly reflect that petitioner had two prior felony convictions. No facial impropriety appears from the use of the prior convictions to enhance the sentences currently under attack. At least implicitly, furthermore, the Texas Court of Criminal Appeals found the prior convictions to be valid and thus sufficient to enhance petitioner's sentences. As already stated, this Court does not review a state court's interpretation of its own law. Consequently, this Court will not consider the claim that the State used two prior void convictions to enhance petitioner's sentences.
C. Ineffective Assistance of Trial Counsel
Petitioner alleges that his trial attorneys rendered ineffective assistance when they failed to make a motion to quash the indictments against him and advised him to plead true to the enhancement paragraphs at punishment. Petitioner raised these claims in his state writ. The state disposition of the ineffective assistance claims appears consistent with existing precedent of the United States Supreme Court. Such disposition involves no unreasonable application of clearly established precedent of the United States Supreme Court. Nor does it appear to be based upon any unreasonable determination of the facts in light of the evidence presented.
To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Petitioners must "affirmatively prove prejudice." Id. at 693. To establish prejudice, they must "show the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented," confidence in the outcome of the proceeding would be undermined. See Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Petitioner claims that his trial attorneys rendered ineffective assistance by failing to file a motion to quash his indictments. He provides no support for such claim. Claiming that an attorney failed to file a motion to quash an indictment, without more, is insufficient to find that the attorney rendered ineffective assistance. Petitioner does not demonstrate that such a motion would have been granted. Petitioners must provide some facts to support their claims. "[C] onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000). Attorneys, furthermore, are "not required by the Sixth Amendment to file meritless motions." United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Petitioner has not shown the indictments to be invalid. To the contrary, the state courts have implicitly found the indictments to be valid. Attorneys do not render deficient performance by failing to move to quash valid indictments. Petitioner, moreover, has demonstrated no prejudice from this alleged deficiency of counsel. He has made no attempt to show that any motion to quash would have created a reasonable probability that the indictments against him would have been dismissed with prejudice to their refiling. In the absence of prejudice, a claim of ineffective assistance cannot stand.
Petitioner also alleges that counsel rendered ineffective assistance when they advised him to plead true to enhancement paragraphs at punishment. Petitioner again provides no support for such claim. He has not shown his previous convictions to be invalid or void. That counsel advised him to plead true to the enhancement paragraphs thus does not appear deficient. An attorney does not generally render deficient performance by advising a client to plead true to enhancement paragraphs that are true.
Petitioner, moreover, has not shown any reasonable probability that, in the absence of such pleas, the trial court would have sentenced him less harshly. To show prejudice in the sentencing context of this case, petitioner must demonstrate a reasonable probability that his sentence would have been less harsh had he not pled true to the enhancement paragraphs pursuant to the alleged erroneous advice of counsel. See Glover v. United States, 531 U.S. 198, 200 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice"). Petitioner's argument presupposes that the trial court would not have found the enhancement paragraphs true in the absence of his pleas. The Court finds this assumption to be based upon pure speculation. Petitioner cannot establish prejudice with mere speculation or conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Rather he must establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 689 (1984). He has not done so here. Consequently, the Court finds no ineffective assistance of counsel in advising petitioner to plead true to the enhancement paragraphs.
D. Ineffective Assistance of Appellate Counsel
Petitioner also argues that he received ineffective assistance from his appellate attorney, John H. Hagler. He specifically contends that Mr. Hagler rendered ineffective assistance by failing to file a motion for new trial that specifically contested the validity of his indictments.
The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const., art. VI. Criminal defendants, furthermore, have a constitutional right to effective assistance of counsel in their first appeal. Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Douglas v. California, 372 U.S. 353, 356-57 (1963). It is unclear, however, whether defendants have a constitutional right to effective representation during the post-conviction, preappeal period of time in which one may file a motion for new trial. See Mayo v. Cockrell, 287 F.3d 336, 339 (5th Cir. 2002). For purposes of these findings, the Court will assume without deciding that defendants are entitled to effective assistance of counsel during that period.
In this instance, trial counsel for petitioner, Ms. Read, filed a motion for new trial on petitioner's behalf. See Trial Court Cause No. F98-43223-LU at 37. Petitioner, nevertheless, argues that his appellate attorney should have filed a motion for new trial which specifically challenged the validity of petitioner's indictments. As petitioner does not allege that he suffered an actual or constructive denial of representation during the post-conviction, pre-appeal period of time, the familiar two-part Strickland test would apply to any permissible claim of ineffective assistance during that period.
Petitioner has demonstrated no basis for a new trial due to the invalidity of his indictments. He has not shown the indictments to be invalid. Counsel was not deficient, therefore, in failing to specifically challenge their validity. Attorneys are not deficient in failing to present a meritless basis in a motion for new trial. They need not file frivolous motions to render effective assistance. Petitioner, moreover, has shown no prejudice due to the alleged deficiency of appellate counsel. He has not shown that a specific challenge to the validity of his indictments would have altered the outcome of the proceedings.
V. Evidentiary Hearing
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. 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. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten 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 by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d , 1428-29 (5th Cir. 1996) (en banc).