SAM A. LINDSAY, District Judge.
The Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Report") were entered in this case on November 26, 2018 (Doc. 27), recommending that the court deny Petitioner's habeas petition, which raises twelve claims, some of which include five to fifteen subparts. Petitioner was granted two extensions to file his objections to the Report. His thirty-six page Objection to the Report (Doc. 32) was docketed on February 28, 2019, and includes ten main objections to the Report. Some of these objections include subparts. He also requests: (1) an evidentiary hearing because he contends that he was not provided with a copy of his trial counsel's affidavit; and (2) discovery of the video-taped meetings he had with his trial counsel to support his objection that his trial counsel did not advise him of an eight-year plea offer.
After carefully reviewing the habeas petition, which is 117 pages in length, file, administrative record in this case, the twenty-two-page Report, and objections, and having conducted a de novo review of that portion of the Report to which objection was made, the court determines that the findings and conclusions of the magistrate judge are correct, and
The court was unable to find any claim for ineffective assistance of counsel in Petitioner's habeas petition and supporting memorandum (Doc. 3)
Moreover, even if his habeas petition and memorandum could be liberally construed as including such a claim, Petitioner would not be entitled to habeas relief on this ground. The court reviewed the portion of the administrative record (Doc. 15) cited by Petitioner. The alleged ex parte communication took place during Petitioner's sentencing hearing in state court on June 4, 2014. The transcript of that proceeding does confirm, as Petitioner asserts, that a discussion took place off the record, but there is no indication from the transcript who participated in that discussion or what was discussed, and Petitioner's assertion or argument that this constituted an impermissible ex parte communication between the trial judge, state prosecutor, and court reporter is not evidence. See R. PageID 364 (Doc. 15-7). Regardless, it is apparent from the transcript that this discussion took place while Petitioner was testifying under oath to present evidence in support of his sentencing and close to the time that the trial court threatened to stop the hearing and the state prosecutor requested to withdraw its plea offer because Petitioner was being evasive in responding to questions by the court and the state prosecutor. See id. R. PageID 355-56, 360.
As noted by the magistrate judge, counsel is not ineffective for failing to raise a meritless or futile objection, and the court determines that any objection by his trial or appellate counsel to this alleged ex parte communication would have been futile and meritless given the timing and circumstances surrounding the discussion that took place off the record. Report 19 (citing United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999); and Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) ("counsel is not required to make futile motions or objections")). Additionally, Petitioner's conclusory assertion that there is a reasonable probability that the outcome of his trial and appeal would have been different if his trial counsel had objected to the alleged ex parte communication is based on nothing more than speculation, which is insufficient. United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989); Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Accordingly, Petitioner is not entitled to habeas relief on this ground.
As noted, Petitioner also included a request for an evidentiary hearing and discovery in his objections to the Report. Petitioner's motions for an evidentiary hearing and discovery were denied by the magistrate judge by separate orders that were entered on March 9, 2017, and September 18, 2017 (Docs. 6, 24).
The court, therefore,
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the court