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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HOMERO PEREZ-ESTRADA,

#59186-177,

§

§ 

 Movant, §

§ No. 3:22-cv-00707-E (BT) 

v. § No. 3:19-cr-00472-E-3 

§

UNITED STATES of AMERICA, §

 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Movant Homero Perez-Estrada, a federal prisoner, filed a pro se

motion to vacate, set-aside, or correct his sentence under 28 U.S.C. § 2255. 

The District Court referred the resulting civil action to the United States 

magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of 

reference. For the following reasons, the Court should dismiss PerezEstrada’s § 2255 motion. 

I.

Perez-Estrada pleaded guilty to an information charging him with 

conspiracy to possess with the intent to distribute methamphetamine in 

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. The District Court 

sentenced him to 240 months’ imprisonment. Perez-Estrada appealed, but 

the Fifth Circuit Court of Appeals dismissed the appeal. United States v. 

Perez-Estrada, No. 21-10543 (5th Cir. Dec. 27, 2021). 

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Perez-Estrada then filed a § 2255 motion (CV ECF No. 1)

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 and a 

memorandum in support (CV ECF No. 2). Because he failed to sign the 

motion, the Court entered a Notice of Deficiency and Order (CV ECF No. 4), 

directing him to file a signed motion. On April 10, 2022, Perez-Estrada filed 

a signed, amended § 2255 motion. Am. Mot. (CV ECF No. 5 at 9). 

In several ground for relief, Perez-Estrada argues:

(1) in the absence of a grand jury indictment, the Court lacked 

jurisdiction over his case; 

(2) his guilty plea did not support his conspiracy conviction; 

(3) his sentence violated the plea agreement and was 

procedurally unreasonable; 

(4) the sentence enhancements set forth in the Presentence 

Report (PSR) denied him due process of law;2 and 

(5) his trial attorney provided ineffective assistance of counsel 

when he

a. failed to “make objectively reasonable 

choices,”

1 For purposes of these Findings, Conclusions, and Recommendation, “CR 

ECF” refers to the criminal action, case number 3:19-cr-472-E-3, and “CV 

ECF” refers to this civil action, case number 3:22-cv-707-E-BT.

2 Perez-Estrada includes the fourth claim in his memorandum in support 

(CV ECF No. 2 at 28-30), but not in his amended motion, see Am. Mot. (CV 

ECF No. 5). And the fifth claim appears in general allegations in the 

“Conclusion” section of his memorandum in support (CV ECF No. 2 at 30-

32). The Government argues that because Perez-Estrada did not include the 

fourth and fifth claims in his amended motion, they are not properly before 

the Court. Resp. 13 n.6 (CV ECF No. 12). In the interest of justice, the Court 

addresses Perez-Estrada’s fourth and fifth claims. 

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b. failed to suppress his statements and illegally 

seized evidence,

c. failed to determine the reliability of the 

Government’s case,

d. failed to “challenge the [ ] factors,” and 

e. waived Perez-Estrada’s constitutional rights. 

The Government responds that Perez-Estrada’s § 2255 motion should be 

denied because his claims are either waived by his knowing and voluntary 

guilty plea, waived by the knowing and voluntary appellate-rights waiver in 

his plea agreement, procedurally defaulted, non-cognizable, or belied by the 

record and/or fatally conclusory. Perez-Estrada filed a reply, and the motion 

is ripe for determination. 

II.

A. Perez-Estrada waived his claim that the Court lacked jurisdiction over his 

case absent a grand jury indictment. 

In his first claim, Perez-Estrada asserts that the Court lacked 

jurisdiction over his case because there was no grand jury indictment. Am. 

Mot. 6 (CV ECF No. 5); Mem. 5-11 (CV ECF No. 2); see also Reply 9-17 (CV 

ECF No. 15). He argues that “[t]he absence of an indictment is a 

jurisdictional defect which deprives the Court of its power to act.” Mem. 6 

(CV ECF No. 2). Perez-Estrada contends that because the Court held him to 

answer for a crime without a proper indictment and exceeded its 

jurisdiction, he is “entitled to be discharged.” Mem. 11 (CV ECF No. 2). 

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But Perez-Estrada voluntarily pleaded guilty, and a knowing and 

voluntary guilty plea generally waives all non-jurisdictional defects relating 

to events preceding the guilty plea. See United States v. Cothran, 302 F.3d 

279, 285-86 (5th Cir. 2002) (stating a guilty plea “waives claims of 

governmental misconduct during the investigation and improper motives 

for prosecution”); United States v. Bentle, 533 F. App’x 462, 463 (5th Cir. 

2013) (per curiam) (stating a guilty plea waives a challenge to the 

voluntariness of a defendant’s confession). This waiver includes all claims of 

ineffective assistance of counsel, except those relating to the defendant’s 

entry of a guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983); see 

also United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000) (noting a 

voluntary guilty plea waiver includes all claims of ineffective assistance of 

counsel unless the ineffective assistance is alleged to have rendered the 

guilty plea involuntary); Pena v. United States, 2021 WL 2920616, at *3 

(N.D. Tex. July 12, 2021) (same). 

Additionally, Perez-Estrada’s plea agreement included the following 

waiver provision:

The defendant waives the defendant’s rights, conferred by 28 

U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal the conviction, 

sentence, fine and order of restitution or forfeiture in an 

amount to be determined by the district court. The defendant 

further waives his right to contest the conviction, sentence, fine 

and order of restitution or forfeiture in any collateral 

proceeding, including proceedings under 28 U.S.C. § 2241 and 

28 U.S.C. § 2255. The defendant, however, reserves the rights 

(a) to bring a direct appeal of (i) a sentence exceeding the 

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statutory maximum punishment, or (ii) an arithmetic error at 

sentencing (b) to challenge the voluntariness of his plea of 

guilty or this waiver, and (c) to bring a claim of ineffective 

assistance of counsel.

(CR ECF No. 32 at 6) (emphasis added). Perez-Estrada’s claim that the Court 

lacked jurisdiction over his case because there was no grand jury indictment 

does not fall within any reservation of rights contained in the waiver 

provision. And courts generally enforce a collateral review waiver provision 

where the waiver “was knowing and voluntary, and if the waiver applies to 

the circumstances at hand.” United States v. Walters, 732 F.3d 489, 491 (5th 

Cir. 2013) (citing United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005)); 

see also United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The Fifth 

Circuit has recognized exceptions to this rule where a movant raises a claim 

of ineffective assistance of counsel or the sentence exceeds the statutory 

maximum. United States v. Barnes, 953 F.3d 383, 388-89 (5th Cir. 2020); 

see also United States v. Hollins, 97 F. App’x 477, 479 (5th Cir. 2004) (per 

curiam). 

In this case, there is no indication that Perez-Estrada’s waiver was not 

informed and voluntary. As part of his plea agreement, Perez-Estrada 

acknowledged his guilty plea was “freely and voluntarily made and is not the 

result of force or threats, or of promises apart from those set forth in this 

plea agreement. There have been no guarantees or promises from anyone as 

to what sentence the Court will impose.” (CR ECF No. 32 at 6.) PerezCase 3:22-cv-00707-E-BT Document 17 Filed 05/05/23 Page 5 of 17 PageID 159
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Estrada also acknowledged that he had “thoroughly reviewed all legal and 

factual aspects of this case with the defendant’s attorney and is fully satisfied 

with that attorney’s legal representation . . . [he] has received from [his] 

attorney explanations satisfactory to [him] concerning each paragraph of 

this plea agreement, each of [his] rights affected by this agreement, and the 

alternatives available to [him] other than entering into this agreement.” Id.

at 6-7. Perez-Estrada conceded “that [he was] guilty, and after conferring 

with [his] attorney, [he] [ ] concluded that it [was] in [his] best interest to 

enter into this plea agreement and all its terms, rather than to proceed to 

trial in this case.” Id. at 7. At his rearraignment hearing, the Court 

specifically noted that the plea agreement included a broad waiver of PerezEstrada’s right to challenge his conviction and sentence in a collateral 

proceeding. (CR ECF No. 134 at 24-25.) Perez-Estrada admitted under oath 

that he understood the right, and he was voluntarily waiving it. Id.

In sum, Perez-Estrada waived his first claim by pleading guilty and by 

specifically waiving his right to bring a § 2255 claim in his plea agreement. 

Perez-Estrada also raises other issues related to his first claim. See 

Mem. 6-10 (CV ECF No. 2). However, these issues similarly fail because they 

are conclusory and have been waived. 

For example, Perez-Estrada argues that there is an issue with “factual 

inaccuracy of the record.” Mem. 6 (CV ECF No. 2). He contends that a noncount indictment was allegedly returned on September 18, 2019, eight days 

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after his arrest, but the docket sheets states “the original counts were added 

as to Movant in this case on 09-18-2019, and Movant was only named in 

Count-four (4).” Id. Perez-Estrada misunderstands the record. The 

complaint appears on the docket sheet (CR ECF No. 1), but the original 

indictment (CR ECF No. 15) was sealed and thus not able to be viewed on 

the publicly available docket. The docket entry Perez-Estrada refers to states 

he was the third defendant named in the multi-defendant criminal case, and 

he was named in four counts of the indictment. See September 18, 2019 

docket entry. 

Perez-Estrada next argues that the indictment is “multiplicious[ ] [sic] 

and raises double jeopardy concerns [because] it charges both the substance 

offense under Section 841(a) and (b)(1)(c), and 846.” Mem. 7 (CV ECF No. 

2). But this claim fails because Perez-Estrada waived it by pleading guilty 

plea and by entering the plea agreement containing a collateral review 

waiver provision. (CR ECF No. 32 at 6). This claim does not fall within any 

reservation of rights contained in the waiver provision. 

Perez-Estrada further argues that “the Grand Jury indictment in this 

case[ ] does not demonstrate the drug quantity alleged in the offense counts 

charged.” Mot. 7 (CV ECF No. 2). More specifically, he contends that—as 

recommended in the PSR and found by the District Court at sentencing—he 

was held responsible for 288,646.17 “kilograms of converted drug weight” 

distributed solely to an unknown confidential informant. Id. As with his 

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other claims. this claim is waived by Perez-Estrada’s knowing and voluntary 

guilty plea and collateral review waiver provision in his plea agreement, (CR 

ECF No. 32 at 6).

Perez-Estrada also summarily argues that “counsel’s ineffective 

assistance fell below an objective standard of reasonableness, and as a 

result[,] [he] was prejudiced.” Mem. 9 (CV ECF No. 2) (citing Strickland v. 

Washington, 466 U.S. 668 (1984)). But Perez-Estrada fails to state what 

specific actions his attorney took that amounted to deficient performance, 

and he fails to suggest how his attorney’s actions prejudiced him. See 

Thomas v. Davis, 968 F.3d 352, 355 (5th Cir. 2020) (to prevail on an 

ineffective assistance of counsel claim, a habeas petition must satisfy the 

two-pronged test set forth in Strickland, 466 U.S. at 668); see also United 

States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000) (per curiam) (“Failure 

to meet either the deficient performance prong or the prejudice prong will 

defeat a claim for ineffective assistance of counsel.”). This claim is so vague 

and conclusory that it fails under both prongs of the Strickland standard. 

See Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998) (“Mere 

conclusory allegations in support of a claim of ineffective assistance of 

counsel are insufficient to raise a constitutional issue.”) (citing Kinnamon v. 

Scott, 40 F.3d 731, 735 (5th Cir. 1994)); see also Anderson v. Collins, 18 F.3d 

1208, 1221 (5th Cir. 1994). And to the extent that Perez-Estrada intends to 

circumvent the waiver provision in his plea agreement by raising a claim of 

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ineffective assistance of counsel, his claim still fails, because he voluntarily 

pleaded guilty and the collateral review waiver does not go to the 

voluntariness of the plea. See (CR ECF No. 32 at 6) (Perez-Estrada 

specifically “reserve[d] the right[ ] . . . to challenge the voluntariness of [his] 

plea of guilty or this waiver”). 

The Government also argues that Perez-Estrada’s first claim is belied 

by the record and procedurally defaulted. Because this claim is waived by his 

guilty plea and the waiver provision in the plea agreement, the Court should 

pretermit consideration of these additional arguments. The Court should 

dismiss Perez-Estrada’s first claim. 

B. Perez-Estrada’s second claim—that his guilty plea did not support his 

conspiracy conviction—is also waived and procedurally defaulted. 

Perez-Estrada argues in his second claim that his guilty plea failed to 

support his conspiracy conviction. Am. Mot. 6 (CV ECF No. 5); Mem. 11-16 

(CV ECF No. 2). Specifically, he contends that his guilty plea violated “Rule 

11(c) because it was not knowingly and voluntarily made” as he was 

“misinformed of the elements of the offense.” Mem. 11 (CV ECF No. 2); see 

also Am. Mot. 6 (CV ECF No. 5). Perez-Estrada further contends that “[t]he 

facts contained in the PSR [do] not establish a conspiracy between either codefendants named in superseding information.” Mem. 11 (CV ECF No. 2). 

He concludes that the Court committed “plain (clear and obvious) error,” 

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and he would not have entered his guilty plea if he was aware the factual 

basis failed to support his conviction for conspiracy. Id. at 16. 

Like his first claim, Perez-Estrada waived his second claim by 

pleading guilty. See Cothran, 302 F.3d at 285-86; see also Bentle, 533 F. 

App’x at 463. It is also waived by virtue of the waiver in his plea agreement 

(CR ECF No. 32 at 6). See Walters, 732 F.3d at 491 (A collateral review 

waiver provision is generally enforced where the waiver “was knowing and 

voluntary, and if the waiver applies to the circumstances at hand.”) (citing 

Bond, 414 F.3d at 544). 

Perez-Estrada’s second claim is also procedurally defaulted. When a 

movant fails to raise a claim on direct appeal, the claim is procedurally 

defaulted and can only be considered under § 2255 if the movant can show 

cause for his failure to raise the claim on direct appeal and actual prejudice, 

or that he is actually innocent. United States v. Placente, 81 F.3d 555, 558 

(5th Cir. 1996); see also United States v. Shaid,937 F.2d 228, 232 (5th Cir. 

1991). A movant bears the burden of demonstrating either cause and actual 

prejudice, or that he is actually innocent. See Bousley v. United States, 523 

U.S. 614, 622 (1998) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986)). 

The only issue raised by Perez-Estrada’s appellate counsel on appeal 

was “[w]hether the district court properly ordered the denial of federal 

benefits where defendant plainly fell within the statutory exception to the 

district court’s authority to impose this punishment?” Perez-Estrada, No. 

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21-10543 (5th Cir.) (ECF No. 27 at 7). Perez-Estrada did not raise his second 

claim on direct appeal, and he has not demonstrated cause and prejudice or 

actual innocence to excuse the procedural default. 

The Government also argues that Perez-Estrada’s second claim is 

belied by the record. Because this claim is waived and procedurally 

defaulted, the Court should pretermit consideration of this additional 

argument. The Court should dismiss Perez-Estrada’s second claim. 

C. Perez-Estrada waived his third claim that his sentence violated the plea 

agreement and was procedurally unreasonable, and the third claim is also 

meritless. 

In his third claim, Perez-Estrada argues that his sentence was “in 

excess of that authorized by [the] plea agreement[ ] and was procudurally 

[sic] unreasonable.” Am. Mot. 6 (CV ECF No. 5); Mem. 16-28 (CV ECF No. 

2); see also Reply 22-27 (CV ECF No. 15). He further argues that his sentence 

was inconsistent with developing changes in the law, such as the First Step 

Act of 2018 (FSA) and Amendment 782 to the United States Sentencing 

Guidelines (U.S.S.G.). Mem. 17-18 (CV ECF No. 2). Perez-Estrada’s third 

claim is waived by his guilty plea and the collateral review waiver in his guilty 

plea (CR ECF No. 32 at 6). See Walters, 732 F.3d at 491 (citing Bond, 414 

F.3d at 544). 

This third claim is also meritless, as it relies on two incorrect 

assumptions: (1) his drug quantity erroneously included relevant conduct 

and allegations from the allegedly defective indictment; and (2) his sentence 

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was based on a 20-year mandatory minimum sentence that has now been 

abrogated by intervening legal authority. Mem. 17 (CV ECF No. 2). PerezEstrada entered into a plea agreement with the Government that included 

no limitations regarding drug quantity or relevant conduct. And, as set forth 

in the PSR, the minimum term of imprisonment could “be [legally] satisfied 

by [any] sentence of imprisonment.” (PSR ¶ 115) (citing U.S.S.G. § 5C1.1(f)). 

The plea agreement specifically states that Perez-Estrada could be 

sentenced between zero and 20 years in prison, and his sentence would be 

imposed at the sole discretion of the Court, after consideration of the 

Sentencing Guidelines. (CR ECF No. 32 at 2.) Perez-Estrada acknowledged 

these provisions by signing the plea agreement on December 16, 2019. The 

plea agreement even included a provision stating that he had reviewed the 

legal and factual aspects of his case with his attorney. Id. at 6. And he 

confirmed that he was “fully satisfied” with his attorney’s representation. Id.

The plea agreement states that it represents the “complete statement of the 

parties’ agreement.” Id. at 7. And Perez-Estrada does not allege that there 

has been a modification to the parties’ agreement. In addition, a 

presumption of regularity is bestowed upon court documents, and they are 

accorded great weight. United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994)

(holding a signed, unambiguous plea agreement is accorded great 

evidentiary weight when determining if a guilty plea is knowing and 

voluntary); see also Bonvillain v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 

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1986). Considering these facts, Perez-Estrada has not shown that his 

sentence violated his plea agreement, and his third claim fails on the merits. 

Moreover, Perez-Estrada’s claim that his guilty plea was not knowing 

and voluntary considering the ultimate determination of his relevant 

conduct also must fail. In addition to his representations in the plea 

agreement, Perez-Estrada acknowledged, under oath, in open court at his 

rearraignment hearing that he had the opportunity to read and review the 

superseding information carefully and discuss it with his attorney (CR ECF 

No. 134 at 19); he understood the nature of the charge to which he was 

pleading guilty (id. at 20); he was fully satisfied with his attorney’s 

representation and advice (id. at 15); he and his attorney had discussed the 

plea agreement carefully (id. at 21); he understood all his trial rights (id. at 

9); he and his attorney had discussed sentencing (id. at 12-13); his attorney 

would give him a professional opinion about what he thought his advisoryguideline range would be (id. at 13); and he had carefully discussed the 

Factual Resume with his attorney (id. at 27-28).

“Solemn declarations in open court carry a strong presumption of 

verity,” which create a “formidable barrier in any subsequent collateral 

proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United 

States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001); United States v. 

Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In the Fifth Circuit, courts afford 

great weight to the defendant’s statements at the plea colloquy. United 

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States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002). When a § 2255

movant brings a claim that is at odds with his sworn testimony, he must 

independently corroborate his allegations. United States v. Gonzalez, 139 

F.3d 899, 1998 WL 127868, at *2 (5th Cir. 1998) (per curiam). Absent 

independent and reliable evidence of the likely merit of his allegations, a 

prisoner “will not be heard to refute [his] testimony given at a plea hearing 

while under oath.” United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 

1998) (citing United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)).

The Government also argues that Perez-Estrada’s third claim is 

procedurally defaulted. Because this claim is waived and meritless, the Court 

should pretermit consideration of this additional argument. The Court 

should dismiss Perez-Estrada’s third claim. 

D. Perez-Estrada’s challenge to the advisory guideline calculations is not 

cognizable in a § 2255 proceeding. 

Perez-Estrada argues in his fourth claim that “[t]he enhancements 

alleged in the PSR [ ] denied due process of law.” Mem. 28 (CV ECF No. 2). 

Specifically, he contends the PSR erroneously recommended enhancements 

that were not applicable to his case. Id. at 28-30. 

Perez-Estrada’s fourth claim is not cognizable under § 2255. See 

United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (§ 2255 

motions can raise only constitutional errors and other injuries that could not 

have been raised on direct appeal that will result in a miscarriage of justice, 

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and because misapplications of the sentencing guidelines do not fall into 

either category, they are not cognizable in § 2255 motions); see also 

Robertson v. United States, 2021 WL 662108, at *2 (N.D. Tex. Feb. 19, 2021)

(citing Williamson, 183 F.3d at 462). Perez-Estrada is attempting to attack 

the District Court’s application of the guidelines to his sentence, and his 

argument is not cognizable in this § 2255 action. The Court should dismiss 

this claim. 

E. Perez-Estrada’s ineffective assistance of counsel allegations fail under 

Strickland. 

Finally, in the “Conclusion” section of his memorandum, PerezEstrada makes numerous summary allegations, which suggest he received 

“ineffective assistance of counsel.” Mem. 30-32 (CV ECF No. 2); see also

Reply 32-33 (CV ECF No. 15). Specifically, he alleges that his trial attorney 

failed to make reasonable choices, failed to suppress his statements and 

illegally seized evidence, failed to determine the reliability of the 

Government’s case, failed to make challenges, and waived his constitutional 

rights. Mem. 30-32 (CV ECF No. 2). Perez-Estrada concludes that his 

attorney’s actions “constructively denied” him effective assistance of 

counsel. Id. at 31. 

To prevail on a claim of ineffective assistance of counsel, a movant 

must show: (1) his counsel’s performance was deficient; and (2) the deficient 

performance prejudiced his defense so gravely as to deprive him of a fair 

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trial. Strickland, 466 U.S. at 687. In Strickland, the Court stated that 

“[j]udicial scrutiny of counsel’s performance must be highly deferential” and 

“every effort [must] be made to eliminate the distorting effects of hindsight.” 

466 U.S. at 689. Courts, therefore, must “indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. Even if a movant proves his counsel’s performance was 

deficient, he must still prove prejudice. To demonstrate prejudice, a movant 

must show “a reasonable probability that the result of the proceedings would 

have been different but for counsel’s unprofessional errors.” Crane v. 

Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 

694). 

Perez-Estrada’s ineffective assistance of counsel claims are so 

conclusory that they lack the necessary details for this Court to address 

them. See Green, 160 F.3d at 1043 (“Mere conclusory allegations in support 

of a claim of ineffective assistance of counsel are insufficient to raise a 

constitutional issue.”) (citing Kinnamon, 40 F.3d at 735); see also Anderson, 

18 F.3d at 1221. And because Perez-Estrada’s claims are conclusory, they are 

subject to summary dismissal. Therefore, the Court should summarily 

dismiss these claims. 

III. 

The District Court should DISMISS Perez-Estrada’s motion to vacate, 

set-aside, or correct his sentence under 28 U.S.C. § 2255. 

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Signed May 5, 2023. 

___________________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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 recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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