Tijerina v. Estelle, 81-1111

• Decision Date: 13 August 1982
• Docket Number: No. 81-1111,81-1111
• Citation: 682 F.2d 504
• Parties: Enrique TIJERINA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 504

682 F.2d 504

Enrique TIJERINA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 81-1111

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1982.

Enrique Tijerina, pro se.

W. Barton Boling, Charles Palmer, Douglas M. Becker, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN, JOHNSON and GARWOOD, Circuit Judges.

PER CURIAM:

Defendant Enrique Tijerina was convicted for the unlawful delivery of heroin and sentenced to ninety-nine years in prison. The Texas Court of Criminal Appeals affirmed his conviction and denied two applications for state writs of habeas corpus.

Subsequently, defendant Tijerina filed an application for writ of habeas corpus in federal district court. The case was referred to a magistrate who recommended that relief be denied. The magistrate's order indicates it was filed November 5, 1980. The docket sheet contains the entry "11-5-80 10) Magistrate's Findings of Fact and Recommendations (J, pltf. atty.)." No objections to the magistrate's report were filed. The district court reviewed all of the state and federal records together with the magistrate's report and entered an order denying relief.

Defendant Tijerina appeals claiming several grounds of error. It is difficult to determine, however, whether any of Tijerina's claims have been preserved for appeal. The law of this Circuit, as recently stated in Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc), dictates that "failure to file written objections to proposed findings and recommendations in a magistrate's report (within ten days after being served with a copy) ... shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the district court except upon grounds of plain error or manifest injustice." Id. at 408.

However, the difficulty in the case sub judice arises because the record contains little or no evidence of the date Tijerina was served with a copy of the magistrate's report. This Court recognized in Nettles that application of the rule mandating a waiver of claims on appeal due to a failure to object to the magistrate's report may produce harsh results. ¹ Consequently, the Court qualified its ultimate holding and explained that appellate review is barred only in cases "where it is evident that the magistrate informed the parties that objections must be filed within ten days of the report." ²

Implicit in the Court's analysis is the holding that clear evidence...