United States District Court, S.D. Texas, Houston Division
H.Miller United States District Judge
death row inmate Dexter Johnson filed a federal habeas corpus
petition in 2011. Dkt. 1. In 2013, the Court entered a
Memorandum and Order (“2013 Opinion”) denying all
but one claim and ordering additional briefing on the
remaining issue. Dkt. 19. This Court subsequently entered a
Memorandum Opinion and Order in 2014 (“2014
Opinion”) reiterating the earlier decision and
disposing of Johnson's final claim. Dkt. 31. The
Court entered a separate final judgment stating: “In
accordance with the Court's Memorandum and Order of even
date, this Court DENIES Dexter Johnson's
petition for a writ of habeas corpus.” Dkt. 32. Johnson
unsuccessfully sought relief in the United States Court of
Appeals for the Fifth Circuit.
several years later, Johnson has filed a motion for
reconsideration under Fed.R.Civ.P. 59(a)(2). Dkt. 41. Johnson
argues that this Court “elected to retain
jurisdiction” because it “never issued a final
judgment with respect to” the 2013 Opinion. Dkt. 41 at
1, 2 n.2. Johnson argues that this Court violated
Fed. R. Civ. Pro. Rule 58 which requires that “[e]very
judgment . . . must be set out in a separate document ”
because it did not issue a final judgment relating to 2013
Opinion. With that formulation, Johnson asks the Court to
revisit the adjudication of his habeas claims.
argument that no final judgment issued for his claims is of
recent vintage. Johnson did not dispute the scope of this
Court's final judgment before appealing issues denied in
both opinions. Johnson, in fact, said that he
“appeal[ed] from the District Court's
denial of all relief dated on June 25th,
2014.” Dkt. 33 (emphasis added). Johnson then raised
issues on appeal that the Court denied in the 2013 Opinion.
Johnson waived any argument based on Rule 58 by the manner in
which he litigated his appeal. See Bankers Trust v.
Mallis, 435 U.S. 381, 388 (1978); see also DeGroat
v. Pier 1 Imports, Inc., 2001 WL 360695, at *1 (5th Cir.
2001); Nagle v. Lee, 807 F.2d 435 (5th Cir. 1987) .
importantly, this Court's final judgment complied with
Rule 58. Courts are “not required to
‘mindlessly' apply Rule 58.” United
States v. Perez, 736 F.2d 236, 238 (5th Cir. 1984)
(quoting Weinberger v. United States, 559 F.2d 401,
402 (5th Cir. 1977)). Johnson argues that the final judgment
“did not incorporate in any way, shape, or form”
the 2013 Opinion. Dkt. 41 at 6. True, the final judgment
referred to the 2014 Opinion, but that opinion reiterated
that all claims had previously been denied. The final
judgment in this case “indicates a plain intent . . .
to take final, dispositive, and adjudicatory action ”
on the whole petition. InterFirst Bank Dallas, N.A. v.
F.D.I.C., 808 F.2d 1105, 1109 (5th Cir. 1987). To hold
otherwise, would elevate form over substance for no practical
reason and would also undermine the finality that is of such
particular concern in the habeas context.
hypertechnical arguments have no basis in law or fact. This
Court issued a valid final judgment disposing of all
Johnson's claims. Johnson's Rule 59 motion is
untimely and procedurally improper.
Johnson invokes this Court's jurisdiction under
Fed.R.Civ.P. 60(d)(1) which exists to “relieve a party
from a judgment, order, or proceeding.” Johnson's
motion attacks the denial of several issues, many of which
were rejected by the Fifth Circuit. No matter how designated,
Johnson's motion “attacks the federal court's
previous resolution of a claim on the merits,
” which “is effectively indistinguishable from
alleging that [he] is, under the substantive provisions of
the statutes, entitled to habeas relief.” Gonzalez
v. Crosby, 545 U.S. 524, 526 (2005). Johnson's
recent motion is, in effect, a new habeas petition. Johnson
has not received authorization from the Fifth Circuit to
prosecute a new habeas action. See 28 U.S.C. §
2244(b). Thus, Johnson's motion is also subject to
dismissal as a successive habeas petition.
those reasons, this Court DENIES
Johnson's baseless Rule 59 motion.
 Johnson filed an interlocutory appeal
from that ruling which the Fifth Circuit dismissed. (de
 The 2014 Opinion's first line
recognized that this Court had previously “den[ied] all
but one claim in Dexter Johnson's federal petition for a
writ of habeas corpus.” (de 31 at 1). The 2014 Opinion
also found that Johnson had not shown an entitlement to a
certificate of appealability on the previously denied issues.
(de 31 at 13).
 Johnson's argument rests on a
fiction, that this Court could retain jurisdiction for some
claims during the appellate proceedings. See Griggs v.
Provident Consumer Disc. Co., 459 u.s. 56, 58 (1982)
(“The filing of a notice of appeal is an event of
jurisdictional significance - it confers jurisdiction on the
court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal.”); Taylor v. Sterrett, 640 F.2d 663,
667-68 (5th Cir. 1981) (finding that a district court is
divested of jurisdiction upon the filing of a notice ...