Alba v. Quarterman

Filing 8

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE on case: It plainly appears from the pleadings that petitioner is not entitled to relief. Accordingly, his application for writ of habeas corpus should be summarily denied. Magistrate Judge Jeff Kaplan no longer assigned to case. (See Order.) (Ordered by Magistrate Judge Jeff Kaplan on 09/30/2009) (twd)

IN THE I-INITEDSTATESDISTRICTCOURT N O R T H E R NDISTRICTOF TEXAS DALLAS DIVISION GERARDOALBA Petitioner. VS. RICK THALER, Director TexasDepartment CriminalJustice, of CorrectionaInstitutionsDivision l
Respondent.

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NO.3-09-CV-I643-B

F I N D I N G S AND RECOMMENDATION OF THE U N I T E D STATES MAGISTRATE JUDGE Petitioner GerardoAlba, a Texasprisoner,hasfiled an application for writ of habeasco{pus statedherein,the applicationshouldbe denied. p u r s u a n tto 28 U.S.C. 5 2254. For the reasons I. Petitioner was convicted of attempted murder and sentencedto 10 years probation. No appealwas taken. After petitioner was chargedwith violating the conditions of his release,the trial his him to 20 yearsconfinement. Petitionerchallenged c o u r t revokedhis probationand sentenced on probation revocation and sentence statecollateral review. The Texas Court of Criminal Appeals d e n i e dreliefwithout written order. Ex parte Alba, WR-39,732-04(Tex. Crim. App. Jun. 10,2009). P e t i t i o n e rthen filed this action in federaldistrict court. il. In four grounds for relief, petitioner contendsthat the trial court and the Texas Court of C r i m i n a l Appeals violated his constitutionalrights in connectionwith the hearingand disposition of his statewrit of habeascorpus.

The Fifth Circuit has repeatedly held that defects in a state habeasproceeding are not c o g n i z a b l eunder 28 U.S.C. S 2254. SeeRudd v. Johnson,256 F.3d 317, 319-20 (5th Cir.), cert. an d e n i e dsub nom. Rudd v. Coclcrell,122 S.Ct. 477 (2001) (citing cases)."That is because attack on the statehabeasproceeding is an attack on a procesding collateral to the detention and not the d e t e n t i o nitself." Id. at320, citing Nichols v. Scott,69 F.3d 1255,1275(5th Cir. 1995),cert. denied, petitionerhasfailed to stateacognizableclaim for federalhabeas 1 1 6 S.Ct. 2559 (1996). Because r e l i e f , his applicationshouldbe summarilydenied. RECOMMENDATION It plainly appearsfrom the pleadingsthat petitioner is not entitled to relief. Accordingly, his SEcrIoN GovBnNrNG application for writ ofhabeascorpusshould be summarily denied. SeeRUI-Bs 2 2 5 4 Ctsns, Rule 4. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendationmust f,rle s p e c i f i c w r i t t e n o b j e c t i o n s w i t h i n l 0 d a y s a f t e r b e i n g s e r v e d w i t h a cSee28U.S.C.$636(b)(l); opy, F r o . R. Clv. P. 72(b). In order to be specific, an objection must identiff the specific finding or recommendationto which objection is made, statethe basis for the objection, and specifu the place in the magistratejudge's report and recommendationwherethe disputeddeterminationis found. An objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge is not specific. Failure to file specific written objectionswill bar the aggrievedparty from appealing judge that are acceptedor adoptedby the the factual findings and legal conclusionsof the magistrate Automobile Ass'n, district court, exceptupon groundsofplain error. SeeDouglassv. UnitedServices 7 9 F.3d 1415,l4l7 (SthCir. 1996).

DATED: September 2009. 30,

MAGISTRATEJUDGE STATES