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determined that this opinion should not be published and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.
10