IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

PHILIP FRANKLIN YOUNG III, §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-0816-Y

§

NATHANIEL QUARTERMAN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United

States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254. 

B. PARTIES

Petitioner Philip Franklin Young III, TDCJ #1077687, is a state prisoner in custody of the

Texas Department of Criminal Justice, Correctional Institutions Division, in Lovelady, Texas.

Respondent Nathaniel Quarterman is the Director of the Texas Department of Criminal

Justice, Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

On June 28, 2001, Young was charged by separate indictment with four counts of sexual

 

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“1Clerk’s R.,” “2Clerk’s R.,” “3Clerk’s R.,” and “4Clerk’s R.” refer to the trial court clerk’s

records for Young’s state criminal cases in Cause Nos. 11784, 11785, 11786, and 11787,

respectively.

2

assault of a child in Cause Nos. 11784, 11785, 11786 and 11787 in the 29th Judicial District Court

of Palo Pinto, County, Texas. (1Clerk’s R. at 1; 2Clerk’s R. at 1; 3Clerk’s R. at 1; 4Clerk’s R. at

1.)1 The indictments also included enhancement paragraphs, alleging two previous felony

convictions. On November 5, 2001, Young executed a Guilty Plea Memorandum in each case, after

which he entered open pleas of guilty to the charged offenses. (1Clerk’s R. at 55-60; 2Clerk’s R.

at 55-61; 3Clerk’s R. at 55-61; 4Clerk’s R. at 55-61.) After a hearing, the trial court found Young

guilty of the offenses and assessed his punishment at forty-five years’ confinement in each case, the

sentences to run concurrently. (Reporter’s R., vol. 3 at 45.) Thereafter, Young moved to withdraw

his pleas and filed a notice of appeal in each case. (1Clerk’s R. at 61-73; 2Clerk’s R. at 63-75;

3Clerk’s R. at 64-74; 4Clerk’s R. at 62-74.) The Eleventh District Court of Appeals of Texas

affirmed the trial court’s judgments on July 25, 2002. Young v. Texas, Nos. 11-01-00410-CR, 11-

01-00411-CR, 11-01-00412-CR &11-01-00413-CR, slip op. (Tex. App.–Eastland July 25, 2002)

(not designated for publication). In turn, on January 15, 2003, the Texas Court of Criminal Appeals

refused Young’s petitions for discretionary review. Young v. Texas, PDR Nos. 1510-02, 1511-02,

1512-02 &1513-02. Young did not seek writ of certiorari. (Petition at 3.) 

On February 20, 2004, Young filed four state applications for writ of habeas corpus, one for

each conviction, raising one or more of the claims presented, which were denied by the Texas Court

of Criminal Appeals on October 19, 2005, without written order on the findings of the trial court.

Ex parte Young, Application Nos. 51,569-05, 51,569-06, 51,569-07 & 51,569-08, at cover. Young

filed this petition on November 1, 2005. 

 

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D. ISSUES 

In twenty-two grounds, Young claims the state trial and habeas courts abused their discretion

in various respects, he received ineffective assistance of counsel at trial and on appeal, the

prosecution withheld impeachment and other favorable evidence, and the sheriff’s investigator

violated his due process rights. (Petition at 7-8 & Pet’r Memorandum of Law 1-13.) 

E. RULE 5 STATEMENT

Quarterman alleges that one or more of Young’s claims are unexhausted as required by 28

U.S.C. § 2254(b)(1)(a). However, notwithstanding Young’s failure to exhaust state court remedies

on those claims, Young’s petition may be denied on the merits. Id. § 2254(b)(2).

F. DISCUSSION

1. Legal Standard and for Granting Habeas Corpus Relief

Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a state court shall not be granted with respect to any claim that was adjudicated

on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in

a decision that was contrary to, or involved an unreasonable application of, clearly established

federal law, or (2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is

contrary to clearly established federal law if the state court arrives at a conclusion opposite to that

reached by the Supreme Court of the United States on a question of law or if the state court decides

a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams

v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).

A state court decision will be an unreasonable application of clearly established federal law if it

 

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correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams,

529 U.S. at 407-08.

The statute further requires that federal courts give great deference to a state court’s factual

findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue

made by a state court shall be presumed to be correct. The applicant has the burden of rebutting the

presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically,

when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without

written order, as here, it is an adjudication on the merits, which is entitled to this presumption. Neal

v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.

App. 1997.)

2. Competency to Stand Trial and Voluntariness of Young’s Pleas

If a defendant is competent to stand trial, a voluntary, knowing, and intelligent guilty plea

waives all nonjurisdictional defects in the proceedings against a defendant preceding the plea,

including constitutional challenges to the pretrial proceedings. See Lefkowitz v. Newsome, 420 U.S.

283, 288 (1975); Beasley v. McCotter, 798 F.2d 116, 118-19 (5th Cir. 1986); Smith v. Estelle, 711

F.2d 677, 682 (5th Cir. 1983). Thus, before addressing Young’s claims on the merits, it is necessary

to determine whether Young was competent to stand trial and whether his guilty pleas were

voluntary, knowing, and intelligent.

A defendant is competent to enter a guilty plea if he (1) has sufficient ability at the time of

trial to consult with his attorney with a reasonable degree of rational understanding, and (2) has a

rational as well as factual understanding of the proceedings against him. See Cooper v. Oklahoma,

517 U.S. 348, 355 (1996); Godinez v. Moran, 509 U.S. 389, 396-400 (1993); Drope v. Missouri, 420

 

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U.S. 162, 171-72 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966); Dusky v. United States, 362

U.S. 402, 402 (1960). Under Texas law, a defendant is presumed to be competent to stand trial

unless proven incompetent by a preponderance of the evidence. See TEX.CODE CRIM. PROC. ANN.

art. 46B.003(b) (Vernon Supp. 2005). Because a state court’s competency finding is presumed

correct, a petitioner bears a heavy burden in contesting his competency during federal collateral

review. See DeVille v. Whitley, 21 F.3d 654, 656 (5th Cir. 1994).

A guilty plea is voluntary, knowing, and intelligent if done with sufficient awareness of the

relevant circumstances and likely consequences surrounding the plea. See Brady v. United States,

397 U.S. 742, 748 (1970). If a challenged guilty plea is knowing, voluntary, and intelligent, it will

be upheld on federal habeas review. See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although

a defendant’s attestation of voluntariness at the time of the plea is not an absolute bar to later

contrary contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371, 373-

74 (5th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or

misrepresentation by the court, prosecutor, or his own counsel that his plea would become a

constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63,

75 (1977)).

In this case, the reporter’s record reflects that Young entered his pleas in open court and

testified that he was pleading guilty because he was guilty and the enhancement allegations true.

(Reporter’s R., vol. 2 at 56-59.) He confirmed that he understood the range of punishment for the

offenses and that he had read the admonishments and waivers in the Guilty Plea Memorandums and

had them read to him. (Id.) He confirmed that his pleas were freely and voluntarily entered and that

no one promised him anything, coerced him in any way, or threatened him in any way to plead

 

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guilty. (Id.) 

Further, the documentary record reflects that Young was advised by counsel and the trial

court of his rights, waivers, and the full range of punishment for the offenses. (1Clerk’s R. at 55-

60.) Young executed the Guilty Plea Memorandums in which he acknowledged that he understood

the admonishments and was aware of the consequences of his pleas, that he was mentally competent

to stand trial and had a rational as well as factual understanding of the proceedings against him and

was able to converse with his attorney with a reasonable degree of rational understanding, and that

his pleas were freely and voluntarily entered. (Id.) See Blackledge, 431 U.S. at 74; Kelley v.

Alabama, 636 F.2d 1082, 1084 (5th Cir. 1981). Such representations by a defendant during plea

proceedings carry a strong presumption of verity. Blackledge, 431 U.S. at 74. The Guilty Plea

Memorandums also reflect that counsel reviewed the plea admonishments with Young and

confirmed that Young understood the admonishments and the consequences of his pleas, that

Young’s pleas were knowingly and intelligently made, and that, in his opinion, Young was mentally

competent to stand trial. (1Clerk’s R. at 55.) Based on the documentary evidence and the trial

court’s observance of Young during the plea hearing, the trial court found that Young was sane and

competent to stand trial, that he was uninfluenced in making his pleas by promises or threats, and

that Young’s pleas were knowingly and intelligently made and freely and voluntarily given. The

state habeas court also entered findings refuting Young’s claims of incompetence and

involuntariness. Ex parte Young, Application No. WR-51,569-08, Supplemental R. at 145-51.

Young argues that he raised the issue of his ADD, low IQ, and childhood problems in his

pro se motions and that this should have been sufficient to alert the trial court to question him

regarding these matters. However, Young presented no evidence from an expert or otherwise that

 

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he was so mentally incompetent as to be unable to understand the proceedings against him or assist

in his own defense. Young’s allegations that he was under a doctor’s care in a personal injury suit,

under the care of the county jail doctor, and suffering from paint and chemical fumes do not

establish incompetence. Without substantiation in the record, a court cannot consider a habeas

petitioner’s mere assertions on a critical issue in his pro se petition to be of probative evidentiary

value. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). 

Young failed to show in state court that he was mentally incompetent at the time of the plea

proceeding, and he provides no new evidence of incompetency that would entitle him to federal

habeas relief. Young has not presented proof sufficient to rebut the presumption that he was

competent to stand trial, the regularity of the state court records, and the correctness of the state

courts’ adjudication of the issue. See Babb v. Johnson, 61 F. Supp. 2d 604, 607 (S.D. Tex. 1999);

see also Hill, 210 F.3d at 485; Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994). It appears Young

was competent to stand trial and made the voluntary, knowing, and intelligent choice among the

alternative courses of action open to him, and, fully understanding those options, he elected to enter

open pleas of guilty. See North Carolina v. Alford, 400 U.S. 25, 31 (1970).

3. Abuse of Discretion

In grounds one through nine, Young claims state trial Judge Jerry D. Ray abused his

discretion by not recusing himself from Young’s case. Young claims state trial Judge Tom Crum

abused his discretion by (1) failing to read and rule on his motions to terminate his attorney, (2)

failing to grant his motion to suppress, (3) allowing a letter he wrote to his wife into evidence during

the punishment phase, (4) allowing the prosecutor to express his personal feelings, and (5) failing

to question Young about his drug consumption and mental and educational history. Finally, Young

 

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claims state habeas Judge Steven R. Herod abused his discretion by (1) failing to rule on his

motions, (2) failing to conduct a live evidentiary hearing, and (3) giving credence to trial counsel’s

affidavit.

Young’s valid guilty pleas waived his claim against Judge Ray and his claims (1), (2), and

(5) against Judge Crum. The remainder of his claims lack merit. The state appellate court held that

the letter was nonprivileged under the Texas Commission on Jail Standards and admissible in

evidence during the punishment phase. Young v. Texas, Nos. 11-01-00410-CR through 11-01-

00413-CR, slip op. at 2; 37 TEX. ADMIN. CODE § 291.2. Under jail standards, correspondence to

and from government officials, court officials, the media, and the inmate’s attorney is privileged,

however, all other correspondence is considered nonprivileged and may be opened and read by jail

officials. As such, the state court reasoned that Young could not have had a reasonable expectation

of privacy with respect to the contents of the letter. Young has not demonstrated that this decision

is contrary to or an unreasonable application of federal law on the issue. See Stroud v. United States,

251 U.S. 15, 20-22 (1919); Busby v. Dretke, 359 F.3d 708, 720-22 (5th Cir.), cert. denied, 541 U.S.

1087 (2004). Furthermore, under state law, the complained-of argument by the prosecutor during

closing argument was a proper plea for law enforcement. See Felder v. State, 848 S.W.2d 85, 94-95

(Tex. Crim. App. 1992). Even if the argument was improper, the argument did not render the

proceedings so unfair that there is a reasonable likelihood that Young would have received a less

severe punishment given his admission of guilt, the nature of the offenses, and his history of

criminal activity. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Jones v. Butler, 864

F.2d 348, 356 (5th Cir. 1988).

Young claims state habeas Judge Steven R. Herod abused his discretion by failing to rule on

 

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his motions and failing to conduct a live evidentiary hearing. As to Young’s first claim, alleged

defects in a state habeas proceeding are not cognizable under federal habeas review. See Rudd v.

Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001); Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.

1999). Nor has Young shown that the absence of a live evidentiary hearing in his state habeas

proceeding prevented him from having a full and fair hearing on his claims. Young apparently

sought an evidentiary hearing in an effort to further develop the record in support of his

incompetency and ineffective assistance claims. (8State Habeas R. at 8-16, 41.) He produced no

evidence in state court, however, to prove that he suffered from a history of ADD, that he was on

prescription medication, or that he was suffering from paint and thinner inhalation the day of the

plea proceeding. Furthermore, counsel’s affidavit corroborates Young’s testimony at the plea

hearing and his averments in the Guilty Plea Memorandums as to his competence to stand trial and

the voluntariness of his pleas. For the first time in this federal proceeding, he presents the affidavit

of Shirley M. Drath, who avers that she had knowledge that Young was using and abusing

prescription drugs, such as painkillers and muscle relaxers. Young does not explain, however, how

he was prevented from presenting Drath’s affidavit in the state habeas court nor does Drath’s

affidavit establish that he was using and abusing prescription medication on the day of trial. 

4. Ineffective Assistance of Counsel

In grounds ten through seventeen and grounds twenty and twenty-two, Young claims he

received ineffective assistance of counsel at trial and on appeal. (Petition at 14-20.) Young asserts

trial counsel was ineffective by (1) failing to have a working relationship with Young and to file the

motions Young requested him to file, (2) failing to check into Young’s medical and mental health,

(3) failing to investigate why the detective did not stop his interrogation of Young when he asked

for a lawyer, (4) lying to Young about the sentence he would get if he pled guilty, (5) withholding

material information, (6) failing to investigate and prepare for trial, and (7) failing to consult with

 

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Young. 

Young’s valid guilty pleas waived all claims of ineffective assistance of counsel that do not

attack the voluntariness of the guilty plea. Smith, 711 F.2d at 682; Bradbury v. Wainwright, 658

F.2d 1083, 1087 (5th Cir. 1981). Thus, his claims (1), (2), (3), (5), (6), and (7) are waived. The

following discussion is relevant only to Young’s claims (4) and (8).

A criminal defendant has a constitutional right to the effective assistance of counsel at trial.

U.S.CONST. amend. VI. To prevail on an ineffective assistance claim in the context of a guilty plea,

a defendant must demonstrate that his plea was rendered involuntary by showing that (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) there is a reasonable

probability that, but for counsel’s deficient performance, he would not have pled guilty and would

have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985); Strickland v.

Washington, 466 U.S. 668, 687 (1984); Smith, 711 F.2d at 682. In evaluating an ineffective

assistance claim, a court must indulge a strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance or sound trial strategy. Strickland, 466 U.S. at 668,

688-89. Judicial scrutiny of counsel’s performance must be highly deferential and every effort must

be made to eliminate the distorting effects of hindsight. Id. at 689. 

Young’s trial counsel testified via affidavit in the state habeas proceeding that he made no

promises or guarantees as to the outcome of the case and denied that he promised Young a particular

sentence if he pled guilty. Ex parte Young, Application No. 51,569-05, at 44. Further, Young

confirmed in the Guilty Plea Memorandums that his pleas were not made because of fear, threats,

or persuasion, or any promises from any source causing him to confess guilt, and he confirmed in

open court during the plea hearing that no one promised him anything, coerced him in any way, or

threatened him in any way to get him to enter his pleas. Based on this evidence, the state habeas

court found that counsel made no promises or guarantees concerning the outcome of the case to

 

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Young and did not promise Young a 25- or 30-year sentence. Id. at 147-48. Absent any evidence

to rebut this finding, we presume the state court’s finding is correct. Then and now, Young offers

nothing more than his unsubstantiated allegations concerning counsel’s alleged promise of a

particular sentence. Without substantiation in the record, a court cannot consider a habeas

petitioner’s mere assertions on a critical issue in his pro se petition to be of probative evidentiary

value. Ross, 694 F.2d at 1011-12.

Young’s claim that counsel should have questioned him regarding his competency to stand

trial is equally without merit. Counsel stated in his affidavit that he investigated Young’s

competency to stand trial and believed Young to have a rational understanding of what he was

charged with and was able to help prepare his defense. Counsel further stated he was not aware of

any competency issues due to prescription medication or otherwise and that nothing triggered him

to get Young evaluated. (State Habeas Supplemental R. at 44.) Further, as noted above, Young

confirmed in the Guilty Plea Memorandums, and the state trial court found, that he was sane and

competent to stand trial on the day of the plea proceeding. Based on this evidence, the state habeas

court found counsel did investigate Young’s competency and believed Young to be competent to

stand trial. Young failed to show in state court that he was mentally incompetent at the time of the

plea proceeding, and he provides no new evidence of incompetency. Young’s claim, after the fact,

unsupported by anything in the record, is insufficient to rebut the presumption that he received

effective assistance of counsel, the presumption of competency, and the presumption of regularity

of the state court records. See Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) (holding state

court records “are entitled to a presumption of regularity”); Babb, 61 F. Supp. 2d at 607; Siao-Pao

v. Keane, 878 F. Supp. 468, 472 (S.D.N.Y. 1995); see also, e.g., Panuccio v. Kelly, 927 F.2d 106,

109 (2nd Cir. 1991) (a defendant’s testimony after the fact suffers from obvious credibility problems).

Without substantiation in the record, a court cannot consider a habeas petitioner’s mere assertions

 

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on a critical issue in his pro se petition to be of probative evidentiary value. See Ross, 694 F.2d at

1011-12. In his twentieth claim, Young claims his appellate counsel was ineffective by failing

to raise various issues presented in this petition. The Strickland standard applies to claims of

ineffective assistance of appellate counsel, and Young must show both that his appellate attorney’s

alleged errors constituted deficient performance and that his appeal was prejudiced as a result. See

Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001). Young has not identified any meritorious

issues that were not raised on appeal. Thus, appellate counsel cannot be found ineffective for having

failed to raise one or more of the claims. Nor can prejudice result from counsel’s failure to assert

a meritless claim or make a meritless argument. See United States v. Wilkes, 20 F.3d 651, 653 (5th

Cir. 1994).

5. Prosecutorial Misconduct

In his eighteenth ground, Young claims the prosecutor improperly obtained without a warrant

and withheld the letter he wrote to his wife containing derogatory statements against the prosecutor,

the investigator, and the local court system. In his nineteenth ground, Young claims the prosecutor

withheld, or the investigator for the Palo Pinto County Sheriff’s Department destroyed, a

handwritten statement he gave to the investigator on the morning he surrendered himself to law

enforcement. (Petition at 19.) The evidence at the suppression hearing was that Young gave a

handwritten statement to Investigator Ira Mercer before Mercer questioned him about the offenses.

(2Reporter’s R. at 23.) According to Mercer, Young gave him such a statement, but he disregarded

it as worthless to the investigation and of no evidentiary value to him. (Id. at 23-24) Thereafter,

Mercer informed Young of his rights, questioned Young, and prepared a written statement for

Young’s signature. Young apparently attempts to raise a Fourth Amendment and/or a Brady claim

by arguing that his written statement differed from the typewritten statement and that there was an

improper seizure and suppression of favorable evidence that would have established his innocence.

 

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See Brady v. Maryland, 373 U.S. 83 (1963). Young’s valid guilty pleas waived any such claims.

See Tollet v. Henderson, 411 U.S. 258, 267 (1973); United States v. Ruiz, 536 U.S. 622, 628-30

(2002); United States v. Lampazianie, 251 F.3d 519, 526 (5th Cir. 2001); Diaz, 733 F.2d at 376.

6. Right to Counsel

Finally, in his twenty-first ground, Young claims he invoked his right to counsel during

Mercer’s questioning of him, to no avail. (Petition at 19.) Although a suspect subject to custodial

interrogation has a constitutional right to consult with an attorney during questioning, Young’s valid

guilty pleas waived any such claim. See Davis v. United States, 512 U.S. 452, 456 (1994) (citing

Miranda v. Arizona, 384 U.S. 436, 469-73 (1966)); Busby v. Holman, 356 F.2d 75, 77-78 (5th Cir.

1966).

II. RECOMMENDATION

Young has failed to satisfy the legal standard for habeas corpus relief set forth above, and

his petition for writ of habeas corpus should be denied. 

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections to the United States Magistrate Judge’s proposed findings, conclusions, and

recommendation within ten (10) days after the party has been served with a copy of this document.

The court is extending the deadline within which to file, not merely place in the mail, specific

written objections to the United States Magistrate Judge’s proposed findings, conclusions, and

recommendation until August 8, 2006. Failure to file specific written objections within the specified

time shall bar a de novo determination by the district court of any finding of fact or conclusion of

law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking

on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district

 

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court. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op.

on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 8, 2006, to

serve and file, not merely place in the mail, written objections to the United States Magistrate

Judge’s proposed findings, conclusions, and recommendation. It is further ORDERED that if

objections are filed and the opposing party chooses to file a response, a response shall be filed within

seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED July 18, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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