679 F2d 372 Deloney v. W J Estelle

679 F.2d 372

Clifford Ray DELONEY, Petitioner-Appellant,
v.
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent-Appellee.

No. 81-1289.

United States Court of Appeals,
Fifth Circuit.

June 14, 1982.

Clifford R. Deloney, pro se.

Mark White, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, GARZA and TATE, Circuit Judges.

GARZA, Circuit Judge:

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1

Previously, Clifford Deloney, a Texas state prisoner serving a life sentence, moved for appointment of counsel in order that he might effectively pursue an appeal of the district court's denial of his application for habeas relief. Deloney, however, had failed to object to the magistrate's report and recommendations.1 Because of that, we were compelled not only to deny his motion for counsel, but also to dismiss his appeal2 in light of our former decision of Nettles v. Wainwright, 656 F.2d 986 (5th Cir. 1981).3 The mandate was stayed, however, when Unit B of the old Fifth Circuit agreed to reconsider Nettles en banc.4 Nettles has since been re-released,5 and while failure to file written objections to the magistrate's report continues to bar the party from attacking on appeal factual findings in the report accepted or adopted by the district court,6 this bar shall not occur unless the magistrate informs the party that the objections must be filed within ten days after service of a copy of the magistrate's report is made upon him or futher appeal is waived.7

2

A review of the record in the instant case fails to reveal any indication that Deloney was informed of the ten-day limitation. Accordingly, his appeal cannot be dismissed under the current Nettles rationale.

3

Furthermore, after reviewing both the record and the magistrate's findings and recommendations, we cannot say that Deloney's habeas claims are totally spurious. Because we feel that he should be given the opportunity to present them with the aid of competent counsel, his motion for appointment of counsel is GRANTED, and his appeal is hereby reinstated.

ON PETITION FOR REHEARING

PER CURIAM:

4

On petition for rehearing appellee, have supplemented the record with leave of court, points to a notice included in the letter trans mitting the Magistrate's Findings and Recommendations to Appellant as follows' 'The parties have ten (10) days from the date the recommenda tions are served to file any written objection to such proposed finding § and recommendations.' Thus, on the record as now supplemented, the statement in our original opinion that '[a]review of the record ... fails to reveal any indication that Deloney was informed of the ten-day limitation' is no longer accurate.

5

It remains true, however, that Deloney was not advised by the notice of the

6

basic consequence attendingfailure to make objection: waiver of the right to

7

attack the factual findings on appeal. This also is required.

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8

Nettles v. Wainwright,

9

677 F.2d 404, 408 (5th Cir. 1982) (Unit B en banc). The petition must therefore be denied.

1

The magistrate's report was filed on March 9, 1981. Record, vol. 1, at 32. The district court adopted that report on April 30th, and defendant's notice of appeal was filed on June 10th. Record, vol. 1, at 42, 44

2

Deloney v. Estelle, 661 F.2d 1061 (5th Cir. 1981)

3

In Nettles, this Court stated that

It is reasonable to place upon the parties the duty to pinpoint those portions of the magistrate's report that the court must specifically consider. Although the statute calls for "a de novo determination" by the judge, such a determination need only be made as to the "portions of the report or specified proposed findings or recommendations to which objection is made." (Emphasis added.)

656 F.2d 987.

4

Notwithstanding the stay, the original Deloney opinion was published because of our following of the Ninth Circuit's holding in Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). Our Court had not previously ruled on that point of law before

5

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982)

6

Except upon grounds of plain error or manifest injustice. Id. at 410

7

Id