Haygood v. Quarterman ( 2007 )


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  •                                                       United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                June 14, 2007
                           ______________________
                                                            Charles R. Fulbruge III
                                                                    Clerk
                               No. 06-51188
                          ______________________
    
                              ANDRE HAYGOOD,
    
                                                  Petitioner-Appellee,
                                  versus
    
                      NATHANIEL QUARTERMAN, Director,
                   Texas Department of Criminal Justice,
                    Correctional Institutions Division,
    
                                             Respondent-Appellant.
            ________________________________________________
    
       On Appeal from the United States District Court for the
            Western District of Texas, San Antonio Division
                           5:06-cv-00026-JWP
           ________________________________________________
    
    
    Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
    
    PER CURIAM:*
    
        The Director appeals from a magistrate judge’s order
    
    granting in part and denying in part state prisoner Andre
    
    Haygood’s habeas petition. The Director also appeals the
    
    magistrate     judge’s   denial   of   its   Rule   59(e)   motion.
    
    
    
        *
         Pursuant to 5th Cir. R. 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    determined that this opinion should not be published and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 5th Cir. R. 47.5.4.
                                      1
    Because the appeal from the original judgment was not
    
    timely filed, we DISMISS that portion of the appeal. We
    
    vacate and remand the denial of the Rule 59(e) motion,
    
    however, for further proceedings consistent with this
    
    opinion.
    
                               I.
    
        In 2002, Andre Haygood was sentenced to life in Texas
    
    state court for the murder of John Brown. He filed a
    
    motion for new trial, which the trial court denied. The
    
    motion was based on newly-discovered evidence, in which
    
    Mr. Haygood asserted that a man named Sean Jones, while
    
    incarcerated, told another inmate, Lucas Huckleberry,
    
    that someone other than Mr. Haygood had shot Mr. Brown,
    
    and that Mr. Haygood could not have done it. The state
    
    trial court held a hearing on the motion; Mr. Jones was
    
    furnished with a lawyer for that purpose. At the hearing,
    
    Mr. Jones invoked his Fifth Amendment right to avoid
    
    self-incrimination and refused to answer any questions.
    
    Mr. Huckleberry initially testified as to what Jones
    
    would have said about witnessing the murder of Mr. Brown.
    
    After extensive argument, the trial court denied Mr.
    
                                2
    Huckleberry’s testimony as inadmissible hearsay, holding
    
    that Mr. Jones’s statements did not rise to the level of
    
    statements against his penal interest. Accordingly, the
    
    trial court denied Mr. Haygood’s motion for new trial.
    
          Mr.   Haygood’s      conviction      was   affirmed     on    direct
    
    appeal; the Court of Criminal Appeals then refused his
    
    petition for discretionary review. In 2005, that same
    
    court denied his state application for habeas corpus
    
    without written order, based on the findings of the trial
    
    court.
    
          Mr. Haygood then sought federal habeas relief, and
    
    both parties consented to proceed before a magistrate
    
    judge.      He   argued,    inter       alia,    that   his   right     to
    
    compulsory process under the Sixth Amendment should have
    
    overridden Mr. Jones’s erroneous assertion of the Fifth
    
    Amendment right against self-incrimination. As he did on
    
    direct appeal, Mr. Haygood argues that the state court
    
    ruled inconsistently in permitting Mr. Jones to assert
    
    his Fifth Amendment privilege only to then rule that Mr.
    
    Huckleberry’s testimony was inadmissible hearsay because
    
    Mr.   Jones’s     statements     were      not    against     his   penal
    
                                        3
    interest.      Although     the    magistrate        judge       denied   the
    
    majority    of    Mr.    Haygood’s        habeas    claims,      it    granted
    
    relief    on    the     question     of    whether    the     trial      court
    
    properly       permitted     Mr.     Jones    to     assert      his    Fifth
    
    Amendment privilege with such broad scope. As a result,
    
    the magistrate judge declined to vacate Mr. Haygood’s
    
    conviction, but instead conditioned habeas relief on the
    
    requirement       that    the   state      courts    convene       a    proper
    
    inquiry into the legitimacy and scope of Mr. Jones’s
    
    assertion of his Fifth Amendment privilege.
    
        The judgment was entered June 30, 2006. On July 14,
    
    2006, the Director filed a motion for an extension of
    
    time to file a Rule 59(e) motion to alter or amend the
    
    judgment. The magistrate judge granted the extension
    
    until July 27, 2006, at which time the Director timely
    
    filed the motion. On August 11, 2006, the magistrate
    
    judge    denied    the     motion.    On     September      6,    2006,    the
    
    Director filed a notice of appeal as to both the original
    
    judgment and the denial of the rule 59(e) motion.
    
                                         II.
    
    
    
                                          4
        As a preliminary matter, we dismiss the Director’s
    
    appeal as to the original judgment as untimely. Under FED.
    
    R. APP. P. 4(a)(1)(A), a notice of appeal is timely if
    
    filed within 30 days of the entry of judgment. A timely
    
    filed Rule 59 motion for new trial will delay the running
    
    of the time for appeal until the entry of the last order
    
    disposing of the motion. FED. R. CIV. P. 59; FED. R. CIV. P.
    
    4(a)(4). As the Director concedes, the district court
    
    lacked the power to enlarge the time to file the Rule
    
    59(e) motion. FED. R. CIV. P. 6(b). Because the Rule 59(e)
    
    motion was not timely filed, it did not extend the time
    
    in which to file the notice of appeal. As a result, the
    
    Director’s notice of appeal, filed August 11, 2006, is
    
    not timely as to the June 30, 2006 judgement.
    
        The   Director   urges   us   to   apply   the   unique
    
    circumstances exception, which would allow its appeal to
    
    be heard on the merits based on reliance on the trial
    
    court’s indication of timeliness. Thompson v. Immigration
    
    and Naturalization Service, 
    375 U.S. 384
    , 386-87 (1964)
    
    (per curiam); but see, e.g., U.S. v. Heller, 
    957 F.2d 26
    ,
    
    31 (1st Cir. 1991) and Panhorst v. U.S., 
    241 F.3d 367
    ,
    
                                 5
    370-73 (4th Cir. 2001) (calling the existence of this
    
    exception into doubt). We need not reach any question as
    
    to the exception’s validity today, because even assuming
    
    arguendo that the exception is still an accepted part of
    
    our precedent, the Director has failed to identify a
    
    “specific assurance by a judicial officer” on which the
    
    Director could have relied. See Osterneck v. Ernst &
    
    Whinney,   
    489 U.S. 169
    ,    179     (1989)       (“By   its   terms,
    
    Thompson applies only where a party has performed an act
    
    which, if properly done, would postpone the deadline for
    
    filing his appeal and has received specific assurance by
    
    a   judicial   officer    that    this    act     has    been     properly
    
    done.”).   Accordingly,     we    DISMISS       the     portion    of   the
    
    Director’s appeal related to the magistrate judge’s June
    
    30, 2006 judgment.
    
                                     III.
    
         The Director next argues that its post-judgment Rule
    
    59(e)   motion   should    be    construed        as    a    timely     Rule
    
    60(b)(4) motion, as it challenges the magistrate judge’s
    
    authority to enter its judgement. Were we to accept that
    
    line of argument, we would review the magistrate judge’s
    
                                      6
    order de novo. See Dyer v. Johnson, 
    108 F.3d 607
    , 609
    
    (5th     Cir.    1997);      Recreational           Properties,        Inc.     v.
    
    Southwest Mortgage Serv. Corp., 
    804 F.2d 311
    , 313-14 (5th
    
    Cir.    1986).       We   need    not    decide      the    question      today,
    
    however,        as    the    magistrate           judge’s     ruling      cannot
    
    withstand review even under the more deferential abuse of
    
    discretion       standard        typically        applied     to   Rule    59(e)
    
    motions. Hess v. Cockrell, 
    281 F.3d 212
    , 215 (5th Cir.
    
    2002).
    
           The provisions of the Anti-Terrorism and Effective
    
    Death Penalty Act of 1996 (“AEDPA”) govern this case.
    
    AEDPA limits federal habeas relief to state prisoners
    
    where their claim was adjudicated on the merits in state
    
    court by requiring them to show that the decision (1) was
    
    contrary to or an unreasonable application of clearly-
    
    established federal law, as announced by the Supreme
    
    Court,    or     (2)      resulted      in    a    decision    based      on    an
    
    unreasonable         determination           of    the     facts   given       the
    
    evidence presented in the state court proceedings. 28
    
    U.S.C. § 2254(d). The magistrate judge’s ruling, while
    
    acknowledging this standard, does not directly address
    
                                             7
    the   question      of    whether     Mr.     Haygood     has   a   clearly
    
    established federal constitutional right to a hearing on
    
    a motion for new trial.
    
    
    
          To the extent that Texas state statutes provide a
    
    right to a motion for new trial or a hearing on such a
    
    motion,     “[w]e        will   not       review   a      state     court's
    
    interpretation of its own law in a federal habeas corpus
    
    proceeding.” Dickerson v. Guste, 
    932 F.2d 1142
    , 1145 (5th
    
    Cir. 1991), see also TEX. R. APP. P. 21. Furthermore, we
    
    have held that the denial of a motion for new trial does
    
    not   necessarily        constitute       a   violation    of   a   federal
    
    constitutional right. See Dickerson, 932 F.2d at 1145.
    
    Similarly, we have held in the past that the Supreme
    
    Court     has    not      clearly     established         whether     other
    
    constitutional rights, such as the Sixth Amendment right
    
    to counsel, attach at this phase; indeed, we have noted
    
    that a circuit split exists on the issue. See Mayo v.
    
    Cockrell, 
    287 F.3d 336
    , 339-40 (5th Cir. 2002). Given
    
    such precedent, we find it an abuse of discretion for the
    
    magistrate judge to have simply assumed that the right in
    
                                          8
    question is a clearly established federal constitutional
    
    right. Accordingly, we VACATE his conditional award of
    
    habeas   relief   and        REMAND   for   further    proceedings
    
    consistent with this opinion.
    
        In   so   doing,    we    further   note   that,   should   the
    
    magistrate judge find that a clearly established federal
    
    constitutional right has been violated, he must then
    
    determine whether the error in question is harmless. See
    
    Brecht v. Abrahamson, 
    507 U.S. 619
    , 635 (1993) (noting
    
    that the court must apply the harmless error standard).1
    
    Finally, we observe that we have, in the past, frowned
    
    upon grants of habeas relief that compel state courts to
    
    reopen proceedings. See Moore v. Dretke, 
    369 F.3d 844
    ,
    
    846 (5th Cir. 2004); Dixon v. Beto, 
    472 F.2d 598
    , 599
    
    (5th Cir. 1973) (“The federal courts are not empowered to
    
    order the state courts to make remedies available nor are
    
    
    
        1
           The court in Brecht goes on to derive the
    formulation of standard on habeas review from the federal
    harmless error statute, 28 U.S.C. § 2111, at least where
    errors are of the trial type. Brecht v. Abrahamson, 
    507 U.S. 619
    , 635 (1993). We do not speak today as to whether
    the alleged violation constitutes that type of error, but
    leave it to the district court’s determination.
                                      9
    they authorized to dictate the type of hearing which is
    
    to be conducted by the state courts.”).
    
                              IV.
    
        For the reasons given above, we DISMISS the
    
    Director’s appeal from the magistrate judge’s June 30,
    
    2006 judgment. We VACATE and REMAND the magistrate
    
    judge’s disposition of the Director’s Rule 59(e) motion
    
    for further proceedings consistent with this opinion.
    
    
    
    
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