April 3, 2001
Came on for consideration the above-captioned action wherein Jack Eugene Thornton is petitioner and Gary L. Johnson is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On January 22, 2001, the United States Magistrate Judge issued his findings, conclusions, and recommendation that the petition for writ of habeas corpus be denied and ordered that the parties be granted until February 12, 2001, to serve and file their written objections thereto. The court subsequently extended the deadline for the filing of objections and petitioner timely filed same. The court has considered de novo the Magistrate Judge's findings and conclusions to the extent that petitioner has objected. Having done so, the court finds that the petition should be denied. The Magistrate Judge has adequately discussed the grounds raised by petitioner.
The court notes that petitioner raises new arguments not presented by petitioner in his petition as it existed before the Magistrate Judge, but rather as objections to the Magistrate Judge's findings, conclusions, and recommendation. Petitioner contends for the first time in his objections that his counsel rendered ineffective assistance for (a) failing to timely file a motion for severance, (b) not being prepared for the witnesses provided him, and (c) being surprised by the prosecution's added witnesses that were not on the witness list. A petitioner whose case is referred to the Magistrate Judge for initial handling (for findings, conclusions, and recommendation) cannot for the first time in his objections to the Magistrate Judge's findings, conclusions, and recommendation raise a ground not asserted in the petition as it existed when the matter was before the Magistrate Judge for consideration. See Cupit v. Whitley, 28 F.3d 532, 535 n. 5 (5th Cir. 1994); see also Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Electric, Inc., 840 F.2d 985, 990-91 (1st Cir. 1988). Therefore, the court is not considering these new arguments raised by petitioner in his objections to the Magistrate Judge's findings, conclusions, and recommendation.
The court accepts and adopts the findings, conclusions, and recommendation of the United States Magistrate Judge.
The court ORDERS that the petition for writ of habeas corpus be, and is hereby, denied.