IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-60043
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HERWIN NOE,
Petitioner-Appellant,
versus
RAYMOND ROBERTS,
SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,
Respondent-Appellee.
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Appeal From the United States District Court
for the Southern District of Mississippi
3:95-cv-435-BN
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January 6, 1997
Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Herwin Noe appeals from the district
court’s order adopting the Report and Recommendation of the
magistrate judge and dismissing Noe’s Petition for Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2254. Noe contends primarily
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
that the district court erred in determining that (1) he was not
subject to constitutionally ineffective assistance of counsel, (2)
the evidence adduced at trial was constitutionally sufficient to
support a guilty verdict on the charge of murder, (3) the
introduction of autopsy photographs did not render his trial
unfair, (4) his constitutional right to a speedy trial was not
violated, and (5) his other claims not objected to at trial or on
direct appeal were procedurally barred by an adequate and
independent state procedural rule.
In conducting our review of all these issues pursuant to the
standards provided in the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA),1 and in light of Noe’s failure to object to
the factual findings contained in the magistrate judge’s Report and
Recommendation,2 we carefully evaluated the record on appeal, the
arguments of both pro se Petitioner Noe and the Respondent as set
forth in their respective briefs, and the applicable law, and we
have come to the same legal conclusions as did the district court.
We found particularly persuasive the articulate and well-reasoned
1
AEDPA §§ 101-106, Pub. L. No. 104-132, Sec. 101-106, 110
Stat. 1214, 12-14-21 (1996), codified at, 28 U.S.C. §§ 2241-2255.
2
Because the notice Noe received in connection with the
Report and Recommendation did not comply with Douglass v. United
Services Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc), we apply our former standard which bars a party from
attacking on appeal any factual findings accepted or adopted by the
district court except upon grounds of plain error or manifest
injustice. Nettles v. Wainright, 677 F.2d 404, 410 (5th Cir. 1982
(en banc).
2
findings contained in the Report and Recommendation submitted to
the district court by United States Magistrate Judge Alfred G.
Nichols. We therefore affirm in all respects the district court’s
dismissal of Noe’s petition for the reasons set forth in the
magistrate judge’s Report and Recommendation, a copy of which is
attached.
AFFIRMED.
3