Opinion
CIVIL ACTION NO. 4:02-CV-992-Y
May 21, 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 Amado Rodriguez, TDCJ-ID #914399, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Beeville, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
According to state court records, in 1998, Rodriguez was charged by indictment in Tarrant County, Texas, with sexual assault of a child younger than seventeen years of age. (Clerk's R. at 3.) At trial, the victim, S.S., testified that she began babysitting for Rodriguez and his wife when she was thirteen. (3Rep. R. at 11-13.) When she was fifteen, Rodriguez, who was thirty-seven at the time, began having sexual intercourse with her. (Id. at 17-27.) According to S.S., Rodriguez had sexual intercourse with her between ten and fifteen times. (Id. at 26-27.) S.S. got pregnant and gave birth to Rodriguez's son in July 1997. (Id. at 29-31.) After learning that S.S. was pregnant, Rodriguez absconded to Mexico and was arrested in February 1998 in Houston. (Id. at 56.) In his defense, Rodriguez testified that he was misinformed about S.S.'s age by S.S. and S.S.'s mother and that S.S. pursued a relationship with him. (Id. at 71-75.) He admitted that he left town after learning that S.S. was pregnant and that he had prior criminal convictions for burglary, aggravated assault on a police officer, and possession of marijuana. (Id. at 77-78.)
Based on the evidence, a jury found Rodriguez guilty of the charged offense on February 29, 2000, and assessed his punishment at thirty-eight years' confinement. (Clerk's R. at 80, 88.) Rodriguez appealed his conviction, but the Second Court of Appeals affirmed the trial court's judgment on October 26, 2000. Rodriguez v. State, No. 2-00-076-CR (Tex.App.-Fort Worth Oct. 26, 2000) (not designated for publication). On April 18, 2001, the Texas Court of Criminal Appeals refused Rodriguez's petition for discretionary review. Rodriguez v. State, No. 269-01 (Tex.Crim.App. Apr. 18, 2001). The United States Supreme Court denied writ of certiorari on October 1, 2001. Rodriguez v. State, No. 01-5345 (U.S. Oct. 1, 2001).
Rodriguez filed a state application for writ of habeas corpus which was denied by the state trial court and, in turn, by the Texas Court of Criminal Appeals without written order. Ex parte Rodriguez, No. 53,076-01, at cover (Tex.Crim.App. Sept. 25, 2002). 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 November 26, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition deemed filed when papers delivered to prison authorities for mailing).
D. ISSUES
Rodriguez raises the following four grounds for relief:
(1) He was denied his right to due process of law when the Second Court of Appeals and another state court of appeals reached opposite and conflicting results on an issue of error on the same day;
(2) He was denied his right to equal protection when the Second Court of Appeals applied an incorrect standard to the preservation of plain error for improper jury argument;
(3) He was denied effective assistance of counsel; and
(4) The trial court erred by allowing the state to cross-examine him concerning the specific details of his federal conviction for possession of marihuana. (Pet. at 7-8 attach.; Mem. in Support at 5-16.)
E. RULE 5 STATEMENT
Cockrell asserts that Rodriguez has failed to exhaust his state court remedies regarding grounds 1, 2, and portions of ground 3, and that the claims are procedurally barred. (Resp't Answer at 3.) 28 U.S.C. § 2254 (b)-(c). As a preliminary matter then, the question of whether Rodriguez has exhausted his state court remedies as to those claims must be addressed.Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). This requires that the highest state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the state. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review or a state habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure in felony cases. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Pamph. 2003).
In the instant case, Rodriguez raised his due process claim under his first ground in his motion for rehearing, and the Second Court of Appeals' denial of the motion was apparently on the merits. Thereafter, Rodriguez raised his due process claim in addition to his equal protection claim under his second ground as one claim in his petition for discretionary review, which was refused by the Texas Court of Criminal Appeals. Neither claim was raised in his state writ application.
Because the claims involve alleged constitutional error occurring during the appellate process, Rodriguez asserted his due process claim under his first ground on the first possible occasion, in his motion for rehearing, and then he raised the claim again in his petition for discretionary review. Thus, the Texas Court of Criminal Appeals had a fair opportunity to decide Rodriguez's due process claim so as to exhaust state remedies for purposes of federal habeas corpus relief See Ogle v. Estelle, 592 F.2d 1264, 1267 (5th Cir. 1979).
The Texas Court of Criminal Appeals did not, however, have a fair opportunity to decide his equal protection claim. The presentation of a claim for the first time on discretionary review to the state's highest court does not constitute "fair presentation" for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). As previously noted, to exhaust state remedies a petitioner must present his claims in a procedurally proper manner. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). To the extent a petitioner raises a claim in his petition for discretionary review that was not raised in the court of appeals, such claim was not presented to the Texas Court of Criminal Appeals in a procedurally proper manner. One does not satisfy the exhaustion requirement, through direct appeal, by raising a claim "in the Texas Court of Criminal Appeals without first obtaining review by an intermediate appellate court." Myers v. Collins, 919 F.2d 1074, 1077 (5th Cir. 1990). Tn effect, "[t]he exhaustion doctrine requires that the chosen avenue of post-conviction relief, whether direct or collateral, be pursued in such a manner so as not to present claims to a state's appellate courts for the first and only time in a petition for discretionary review." Id. Moreover, when a federal petitioner presents a claim under a legal theory not properly presented to the state court, he has not exhausted his state remedies even though the claim may arise under the same factual basis as a different claim that was properly presented to the state court for consideration. See Henry v. Cockrell, No. 02-41093, 2003 WL 1798524, at *1 (5th Cir. Apr. 7, 2003). Accordingly, Rodriguez's equal protection claim under his second ground is unexhausted for purposes of federal habeas corpus review.
Similarly, under his third ground, Rodriguez contends his trial counsel was ineffective by (1) failing to move for an instructed verdict on the issue of venue; (2) failing to object to improper questioning during voir dire; and (3) failing to properly object and preserve error for inflammatory jury argument. (Pet. at 7.) Although Rodriguez raised his first and third ineffective assistance claims in his state writ application, it appears he raises his second claim for the first time in his federal petition. This does not suffice to satisfy the exhaustion requirement. 28 U.S.C. § 2254(b)(1)(A); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998).
Assuming both unexhausted claims could have been raised on collateral review, under the Texas abuse-of-the-writ doctrine, Rodriguez cannot now return to the state courts for purposes of exhausting the unexhausted claims. The Texas abuse-of-the-writ doctrine prohibits a successive state habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Under these circumstances, federal habeas corpus relief is unavailable unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claim will result in 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); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
Rodriguez has failed to establish cause for failing to properly raise his equal protection claim and his second ineffective assistance claim in the state courts. He has not given an explanation to excuse his default of the claims or demonstrated that failure to consider the claims will result in a miscarriage of justice, i.e., that he is innocent of the crime for which he was charged and convicted. (Pet'r Reply to Resp't Answer at 1-8.) Accordingly, Rodriguez's second ground and his ineffective assistance claim under his third ground not previously exhausted are procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
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.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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. Due Process
In his first ground, Rodriguez contends he was denied due process of law because the Second Court of Appeals and the Austin Court of Appeals reached opposite and conflicting results on an issue of error on the same day. (Pet. at 7.) In its opinion issued on October 26, 2000, the Second Court of Appeals ruled that Rodriguez failed to preserve error during jury argument. (State Habeas R. at 107-08.) Rodriguez alleged in his motion for rehearing and his petition for discretionary review that the Austin Court of Appeals, on the same date, ruled differently upon a similar set of facts in an unrelated case as reported by the Fort Worth Star-Telegram. Burton v. State, No. 73,204 (Tex.App.-Austin Oct. 26, 2000) (not designated for publication). He argued then, as he appears to do now, that Texas Rules of Appellate Procedure 47.7 and 77.3, prohibiting him from citing unpublished opinions as authority, deny him due process of law. See Tex. R. App. P. 47.7, 77.3. He fails, however, to cite to any authority in support of his proposition, and none is found. Thus, Rodriguez is not entitled to habeas relief under his first ground.
Former rule 47.4 regarding proceedings in intermediate courts of appeals provided: "Opinions not designated for publication by the court of appeals have no precedential value and must not be cited as authority by counsel or by a court." Rule 47.4 has been amended and currently states: "Opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, "(not designated for publication)." Rule 77.3 regarding proceedings in the Court of Criminal Appeals provides: "Unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court." TEX. R. APP. P. 77.3.
Although the due process clause is not implicated, there appears to be some debate about whether court rules restricting the precedential value of unpublished opinions is constitutional under Article III of the Constitution. See, e.g., Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir.) (holding local circuit rule unconstitutional insofar as it limited precedential effect of prior decisions), vacated as moot on other grounds, 235 F.3d 1054 (8th Cir. 2000); Hart v. Massanari, 266 F.3d 1155, 1175-76 (9th Cir. 2001) (holding local circuit rule restricting precedential value of unpublished opinions constitutional); Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 260-63 (5th Cir. 2001 (Smith, J., dissenting) (discussing "questionable practice of denying precedential status to unpublished opinion"). However, that is not the issue presented.
3. Ineffective Assistance of Counsel
Under his third ground, Rodriguez contends trial counsel was ineffective by (1) failing to move for an instructed verdict on the issue of venue, and (2) failing to properly object and preserve error for inflammatory jury argument. (Pet. at 7.) A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688. 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 there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688. A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.
Where, as here, a petitioner's ineffective assistance claims have been reviewed on their merits under the Strickland standard and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of Strickland, or if the state courts' decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 123 S.Ct. 676 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 123 S.Ct. 625 (2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002). If the state court does not make express findings of fact, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sain, 372 U.S. 293, 314 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir. 1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973). Further, if the state court did not articulate the constitutional standards applied, this court may assume that the state court applied correct standards of federal law to the facts in the absence of evidence that an incorrect standard was applied. Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001).
Rodriguez's first claim is premised on the fact that the indictment alleges he committed the offenses on or about October 1, 1996 in Tarrant County, Texas, and the proof at trial showed the offenses occurred on that particular date in Dallas County, Texas. (Pet. at 7; Pet'r Reply to Resp't Answer at 9-13.) As a matter of Texas law, however, the state is not bound by the "on or about" language in the indictment, and it may prove a date other than the date alleged so long as the date is anterior to the presentment of the indictment and within the offense's statute of limitations period. See TEX. CODE CRIM. PROC. ANN. art. 21.02(6) (Vernon 1989); Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000), cert. denied, 531 U.S. 1128 (2001); Yzaguirre v. State, 957 S.W.2d 38, 40 (Tex.Crim.App. 1997); Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997); Scoggan v. State, 799 S.W.2d 679, 680 n. 3 (Tex.Crim.App. 1990).
The limitations period for sexual assault of a child is ten years from the eighteenth birthday of the victim. TEX. CODE CRIM. PROC. ANN. art. 12.01(5)(B) (Vernon Supp. 2003). S.S. testified that she was born on May 30, 1981; therefore, the limitations period would not run for the charged offense until May 30, 2009. Consequently, the only relevant date requirement was that the state prove the alleged offense occurred anterior to the presentment of the indictment on April 1, 1998 in Tarrant County, Texas.
Texas law states that a sexual assault may be prosecuted in the county in which it is committed. Id. § 13.15 (Vernon Supp. 2003). S.S. testified that, although Rodriguez had sexual intercourse with her for the first time in Dallas County, he also had sexual intercourse with her more than ten times between October 1996 and February 1997 at his home in Tarrant County. (3Rep. R. at 25-27.) Rodriguez also testified that he had sexual intercourse with S.S. on many occasions in Tarrant County during the relevant time frame. (Id. at 73-76.) Accordingly, the evidence was sufficient to show that the alleged criminal conduct occurred in Tarrant County, and any objection, argument, or motion for instructed verdict by counsel on the basis of improper venue would have been frivolous. Counsel is not required to make frivolous objections, arguments, or motions. United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
Under his second claim, Rodriguez contends trial counsel was ineffective by failing to "object and properly object to inflammatory jury argument." (Pet. at 7.) Apparently, Rodriguez complains of the following argument by the prosecutor during the punishment phase of his trial:
Now what you ought to go back there and do in about three minutes and give him life and a $10,000 fine. He never has to pay it. His family has paid it. You know what that is called? That is called a spite fine. That is called for years and years of bad conduct. . . . You can take out your anger on him. You can use your spite on him. He made you sit through this mess. You can take it back out on him. You can do it. He thinks it's ridiculous. He thinks it is funny. . . . When you are assessing that man's punishment and you think about how he has said, I'm the one that got raped up there, it ought to turn your stomachs. He deserves more than life and a $10,000 fine. Unfortunately, under the law, you can't give him that. (4Rep. R. at 17-18; Pet'r Reply to Resp't Answer at 14.)
Rodriguez's trial counsel objected to the phrase "a spite fine," but his objection was overruled. Counsel did not otherwise object to the argument.
Rodriguez complained of improper jury argument in his appellate brief, but the Second Court of Appeals concluded that counsel had failed to properly preserve the issue for appellate review. (State Habeas R. at 56.) Assuming, without deciding, that counsel's failure to do so was deficient performance, Rodriguez cannot satisfy the second prong of Strickland. He has not demonstrated that but for counsel's deficient performance he would have received a less severe sentence. In fact, he received a lower sentence than that being sought by the state or allowed by law.
Having considered Rodriguez's ineffective assistance claims in conjunction with the state court records, it does not appear that the state court's adjudication of the claims resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard, or that it is based on an unreasonable determination of the facts in light of the evidence before the courts.
4. Evidence of Federal Conviction
In his fourth ground, Rodriguez claims the trial court erred by allowing "detail about [his] prior federal conviction" for possession with intent to distribute marijuana during the guilt/innocence phase of trial. (Pet. at 8.) He contends the trial court allowed the state prosecutor, over his objection, to continue asking him questions regarding specific details about his federal conviction in order to inflame the minds of the jurors. (Id.) The record reflects that on direct-examination Rodriguez admitted that he had a federal conviction "for marijuana." (3Rep. R. at 78.) During cross-examination, the prosecutor further questioned Rodriguez regarding the nature and circumstances of the offense. (Id. at 107-08.)
Rodriguez appears correct in his assertion that, as a matter of Texas law, the state may not bring before the jury the details of an offense that resulted in a prior conviction, the existence of which is admitted by the accused on direct examination. Mays v. State, 726 S.W.2d 937, 953 (Tex.Crim.App. 1986). However, in habeas actions, federal courts do not sit to review the mere admissibility of evidence under state law or errors under state law. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998); Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir. 1991). A state court's evidentiary ruling will mandate habeas relief only when the error violates the federal constitution or is so extreme that it constitutes a denial of fundamental fairness. Little, 162 F.3d at 862. The latter requires that the wrongly admitted evidence play a crucial, critical, and highly significant role in the trial. Id. Rodriguez urges that admission of the evidence regarding the details of his federal conviction rendered his trial fundamentally unfair and that had the evidence not been admitted he would have received an acquittal or at least a shorter sentence. (Pet'r Reply to Resp't Answer at 26.) However, any error that occurred as a result of the trial court's admission of the evidence was harmless. Given the overwhelming evidence of Rodriguez's guilt and his admission of the prior conviction, any prejudicial effect of the complained-of evidence was not likely a substantial or critical factor in the jury's determination. See Thomas v. Lynaugh, 812 F.2d 225, 230-31 (5th Cir. 1987).
5. Summary
In conclusion, the record supports the state courts' determination of the issues presented in this federal proceeding. The state courts' determination is not contrary to or involve an unreasonable application of federal law in light of the record as a whole and is entitled to deference and the presumption of correctness.
II. RECOMMENDATION
Rodriguez'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 June 11, 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 June 11, 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.