IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SAMUEL CHAVEZ, ID # 929860, )

Petitioner, )

vs. ) No. 3:04-CV-2242-M (BH)

 ) ECF

NATHANIEL QUARTERMAN, Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

SUPPLEMENTAL

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of Re-Reference dated August

27, 2007, subject cause has previously been referred to the United States Magistrate Judge. The

supplemental findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

On July 6, 2007, the undersigned Magistrate Judge issued Findings, Conclusions, and

Recommendation (FCR) in this case. On July 11, 2007, respondent filed objections to the FCR

wherein he inter alia sought clarification of the final sentence: “For the foregoing reasons, the

undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus

relief brought pursuant to 28 U.S.C. § 2254 barred by statute of limitations and DENY it with

prejudice.” Respondent objected because he had not argued that the petition was untimely and the

Court had conducted no time-bar analysis in the FCR. He also objected to the Court’s bypassing

of the procedural issue to address the merit of the alleged procedurally barred claim. On August 23,

2007, the Court received petitioner’s response in opposition to respondent’s objections wherein he

argues that his “no evidence” claim was not procedurally barred. 
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As stated in the original FCR, the Court properly bypassed the procedural issue raised with

respect to petitioner’s “no evidence” claim and recommended denial on the merits. See 28 U.S.C.

§ 2254(b)(2) (providing that the Court may deny a habeas petition on the merits, “notwithstanding

the failure of the applicant to exhaust the remedies available in the courts of the State”); Jones v.

Jones, 163 F.3d 285, 299 (5th Cir. 1998) (reaffirming pre-AEDPA law that “when, as in this case,

exhaustion is not waived, courts have the ‘discretion in each case [under § 2254(b)(2)] to decide

whether the administration of justice would be better served by insisting on exhausting or by

reaching the merits of the petition forthwith’”); Braswell v. Dretke, No. 3:02-CV-0342-M, 2004 WL

2583605, at *4 (N.D. Tex. Nov. 12, 2004) (findings, conclusions, and recommendation which recognizes that “the district courts may deny habeas relief for procedurally defaulted claims” in lieu of

deciding the issue of procedural bar), accepted by 2005 WL 1058865 (N.D. Tex. May 2, 2005). This

objection provides no basis to alter or modify the original FCR.

However, respondent’s request for clarification of the FCR’s final sentence does necessitate

a modification of the original FCR. As pointed out by respondent, the FCR contains no time-bar

analysis, and the final sentence recommending denial on this basis was erroneous and the result of

a clerical mistake. Consequently, the final recommendation in FCR is hereby modified to read as

follows: “For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court DENY the request for habeas relief brought pursuant to 28 U.S.C. § 2254.” 

SIGNED this 28th day of August, 2007. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these supplemental findings,

conclusions, and recommendation on petitioner by mailing a copy to him. Pursuant to 28 U.S.C.

§ 636(b)(1), any party who desires to object to these findings, conclusions and recommendation

must file and serve written objections within ten days after being served with a copy. A party filing

objections must specifically identify those findings, conclusions, or recommendation to which

objections are being made. The District Court need not consider frivolous, conclusory, or general

objections. Failure to file written objections to the proposed findings, conclusions, and

recommendation within ten days after being served with a copy shall bar the aggrieved party from

appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the

District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d

1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE