Opinion
3:21-CV-166-DMB-JMV
11-29-2022
TAWANA TERRELL JOHNSON PETITIONER v. WARDEN WENDELL BANKS, et al. RESPONDENTS
ORDER
DEBRA M. BROWN, DISTRICT JUDGE
On June 29, 2022, United States Magistrate Judge Jane M. Virden issued a Report and Recommendation (“R&R”) recommending that the State's motion to dismiss Tawana Terrell Johnson's pro se petition for a writ of habeas corpus be granted and that the petition be dismissed with prejudice as untimely and as procedurally defaulted. Doc. #14. The R&R provided that any objections “must be filed within fourteen (14) days” and ordered Johnson to acknowledge receipt of the R&R by returning the acknowledgment form within the same fourteen days. Id. at 19. Johnson did not file objections or return the acknowledgment of receipt within the time allowed.
On July 15, 2022, the Court adopted the R&R as the order of the Court, granted the State's motion to dismiss, and dismissed Johnson's petition with prejudice. Doc. #15. The Court entered a final judgment that day. Doc. #16.
Johnson acknowledged receipt of the July 15 order on or about August 11, 2022. Doc. #17. The same day, she filed a “Petition to Report Non-Issuance of Report & Recommendation.” Doc. #18. In this filing, Johnson represents that as of August 9, 2022, she had not received a copy of the R&R and in support, attached a notarized “Acknowledgment of Receipt” denying that she received the R&R. Id. at PageID 881.
Because the “filings of a federal habeas petitioner who is proceeding pro se are entitled to the benefit of liberal construction” and given that Johnson's August 11 petition was filed within twenty-eight days of the final judgment, the Court construes Johnson's petition as a motion to amend the judgment under Federal Rule of Civil Procedure 59(e).
Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011).
See In re Franklin, 832 Fed.Appx. 340, 341 (5th Cir. 2020) (motions “asking the court to reconsider a prior ruling” “filed within 28 days of the judgment being challenged” are construed as motions under Rule 59(e)).
“A motion to alter or amend the judgment under Rule 59(e) must clearly establish either a manifest error of law or fact or must present newly discovered evidence and cannot be used to raise arguments which could, and should, have been made before the judgment issued.” Gilbert v. Lessard, 842 Fed.Appx. 926, 927 (5th Cir. 2021) (quoting Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003)). A district court may also grant Rule 59(e) relief to “prevent manifest injustice.” McGillivray v. Countrywide Home Loans, Inc., 360 Fed.Appx. 533, 537 (5th Cir. 2010) (citing In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002)).
Here, Johnson's August 11 petition is based on her representation that she did not receive a copy of the R&R so was not aware of its findings and did not have an opportunity to file objections. Doc. #17. This representation is supported by the absence of an acknowledgment of receipt of the R&R by Johnson and by Johnson's sworn statement denying that she received the R&R. Id. at PageID 881. Finding that such establishes Johnson was not aware of the R&R until after this Court entered judgment, it follows that she could not have raised her failure to receive the R&R before the judgment issued. Additionally, the Court concludes that allowing Johnson an opportunity to raise objections to the R&R will eliminate any potential manifest injustice.
For these reasons, Johnson's motion to alter the judgment [18] is GRANTED. The Court's July 15, 2022, order [15] and judgment [16] are VACATED. The Clerk of Court is DIRECTED to mail Johnson a copy of the R&R and this order. Johnson must acknowledge receipt of both the R&R and this order within fourteen (14) days. Johnson may file any objections to the R&R within twenty-one (21) days of the entry of this order.
SO ORDERED,