United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Before the Court is the petitioner's
Objection to Finding, Conclusions, and Recommendation of
Magistrate, received on February 28, 2019 (doc. 15).
Based on the relevant filings and applicable law, the filing
should be construed as a motion to alter or amend the
judgment under Fed.R.Civ.P. 59(e) and
Picazo (Petitioner) filed a federal habeas petition under 28
U.S.C. § 2254 that was received on December 11, 2018.
(See doc. 2.) On January 30, 2019, it was
recommended that the petition be denied as barred by the
statute of limitations. (See doc. 12.) The
recommendation was accepted, the petition was denied, and
judgment was entered on February 21, 2019. (See
docs. 13, 14.) Petitioner's objection, signed on February
22, 2019, and received on February 28, 2019, argues that the
untimeliness of his petition should be excused, and that the
time that it took the forensics commission to make findings
should be considered. (See doc. 15 at 1-2.)
FED. R. CIV. P. 59(e)
Petitioner's filing was received within 28 days of the
entry of judgment, it should be liberally construed as a
motion to alter or amend the judgment under Rule 59(e) of the
Federal Rules of Civil Procedure. See Rogers v.
McKee, No. 9:06cv228, 2007 WL 2900545, at *2 (E.D. Tex.
Oct. 1, 2007) (construing objections to recommendation
received after dismissal of habeas petition as motion for
relief from judgment) (citing Bagley v. Board of
Directors-Farmers National Bank, 31 Fed.Appx. 152 (5th
Cir. 2001) (holding that objections filed after the entry of
an order of dismissal should be construed as a Rule 60 motion
for relief from judgment)).
prevail on a motion to alter or amend a judgment under Rule
59(e), the moving party must show (1) an intervening change
in controlling law; (2) the availability of new evidence not
previously available; or (3) a manifest error of law or fact.
See Schiller v. Physicians Resource Group, Inc., 342
F.3d 563, 567 (5th Cir. 2003). A Rule 59(e) motion is
“not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised
before the entry of judgment.” Templet v. HydroChem
Inc., 367 F.3d 473, 479 (5th Cir. 2004). Although courts
have “considerable discretion” to grant or to
deny a Rule 59(e) motion, they use the “extraordinary
remedy” under Rule 59(e) “sparingly.”
Id. at 479, 483. When considering a motion to alter
or amend judgment, “[t]he court must strike the proper
balance between two competing imperatives: (1) finality, and
(2) the need to render just decisions on the basis of all the
facts.” Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 355 (5th Cir. 1993).
does not allege new evidence or a change in the law, and he
has not demonstrated a manifest error of law or fact.
Moreover, his argument lacks merit. As noted in the
recommendation, his claims appeared to be based on findings
of the Texas Forensic Commission (Commission), and he raised
them in his state habeas application. Although it was not
clear when the Commission made its findings, Petitioner was
aware of the findings when he filed his state habeas
application. That date was used as the beginning of the
one-year limitations period, and his § 2254 petition was
untimely based on that date. (See doc. 12 at 3.)
Petitioner has not shown that he is entitled to relief under
filing should be construed as a motion under Fed.R.Civ.P.
59(e) and DENIED. SIGNED on this 5th
day of March, 2019.
FOR SERVICE AND NOTICE OF RIGHT TO
of these findings conclusions and recommendation shall be
served on all parties in the manner provided by law Any party
who objects to any part of these findings conclusions and
recommendation must file specific written objections within
14 days after being served with a copy See 28 USC
§ 636(b)(1); Fed R Civ P 72(b) In order to be specific
an objection must identify the specific finding or
recommendation to which objection is made state, the basis
for the objection and specify the place in the magistrate
judge's findings conclusion and recommendation where the
disputed determination is found An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific Failure to file specific
written objections will bar the aggrieved party from
appealing the factual ...