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Johnson v. Washburn

United States District Court, M.D. Tennessee, Nashville Division

July 9, 2019

TIMOTHY JOHNSON, Petitioner,
v.
RUSTY WASHBURN, Respondent.

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         Pending in this dismissed habeas corpus action is a pro se motion by the petitioner, inmate Timothy Johnson, to alter and/or amend the judgment of dismissal under Federal Rule of Civil Procedure 59(e). (Doc. No. 19.) The respondent has filed a response to the motion. (Doc. No. 20.) For the reasons that follow, the motion to alter or amend is DENIED.

         The court may grant a timely filed motion to alter or amend judgment under Rule 59(e) only if the movant shows that there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or a need to prevent manifest injustice. Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). The movant may not use Rule 59(e) to re-argue the case, or present evidence that should have been before the court at the time judgment entered. See Roger Miller Music, Inc. v. Sony/ATV Publ'g, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (collecting cases).

         The court dismissed this action after finding no merit in the petitioner's claim that his conviction for selling cocaine in a drug-free school zone was tainted by the ineffective assistance of trial counsel. In so doing, the court considered the following three grounds for this claim, contained in the original and amended petitions (Doc. No. 1, 12):

(1) Trial counsel was constitutionally ineffective for failing to file a motion to dismiss the indictment, which (a) was defective under Blockburger v. United States, 284 U.S. 299 (1932), because it charged the petitioner with a single offense that violated two state statutes which have different elements and/or prescribe different punishments, and (b) failed to give adequate notice of the charges against the petitioner under Hamling v. United States, 418 U.S. 87 (1974);
(2) Trial counsel was ineffective for failing to ensure that the petitioner understood Tenn. Code Ann. § 39-17-432 (which enhanced his sentence based on proximity of the drug sale to a school), and for failing to object to that statute being introduced to the jury, including by improper jury instruction; and
(3) Trial counsel was ineffective for failing to challenge the use in case number 2014-B-1187 of the evidence (cocaine) which had earlier been introduced as evidence in case number 2012-B-1770.[1]

(Memorandum Opinion, Doc. No. 16 at 7-8.)

         The petitioner now argues that he is entitled to relief from the judgment of dismissal for the following reasons, which track the claims of his petition:

         (1) the court erred in finding that the indictment was not defective--and therefore that counsel was not ineffective in failing to challenge it--because the Tennessee Supreme Court declared in State v. Carter, 121 S.W.3d 579 (Tenn. 2003), that “if the statute is not charged by way of Indictment, then the statut[ory] . . . punishment can't be inflicted, ” and because he was otherwise deprived of procedural due process by the indictment's failure to explicitly reference Tenn. Code Ann. § 39-17-432 (Doc. No. 19 at 2);

         (2) the court's decision related to counsel's alleged failure to ensure that the petitioner understood the sentence enhancement he faced under § 39-17-432 should be revisited because he now asserts that he would have accepted a plea offer if counsel had properly advised him (Doc. No. 19 at 3); and

         (3) the court's decision related to counsel's failure to challenge the State's introduction of the same physical evidence at the petitioner's re-trial on the charge of selling cocaine as it had used to earlier secure his conviction for tampering with evidence should be revisited because “the Fifth and Fourteenth Amendment to the United States Constitution prohibit the use of the same evidence.” (Doc. No. 19 at 4.)

         None of these grounds supports amendment of the judgment under Rule 59(e). The petitioner's first argument above, based on a 2003 decision of the Tennessee Supreme Court, does not demonstrate a clear error of law. Neither the decision in Carter nor the requirements of procedural due process support the petitioner's position that his indictment was invalid, and should therefore have been challenged by counsel, because it did not explicitly refer to Tenn. Code Ann. § 39-17-432. Carter held that an indictment provided sufficient notice of the offense charged when it included “specific reference to the statute allegedly violated, ” but it did not require such a reference in order to confer sufficient notice. 121 S.W.3d at 587-88. As this court noted in its memorandum (Doc. No. 16 at 12), Tennessee courts have specifically upheld the sufficiency of an indictment that incorporates the language of § 39-17-432 without citing to the statute. State v. Braxton, No. M2010-01998-CCA-R3-CD, 2011 WL 5573357, at *4 (Tenn. Crim. App. Nov. 15, 2011), perm. app. denied (Tenn. Apr. 12, 2012); Cobb v. State, No. W2004-00156-CCA-R3-HC, 2005 WL 396379, at *2 (Tenn. Crim. App. Feb. 14, 2005), perm. app. denied (Tenn. Aug. 22, 2005).

         The petitioner's second and third arguments are likewise unavailing. The court denied his claim that counsel was ineffective in failing to ensure that he understood the application of § 39- 17-432 to his case because, even if the petitioner still failed to understand the potential for his sentence to be enhanced under that statute after his first trial, he did not allege that counsel's ineffectiveness resulted in any prejudice, i.e., “that he rejected a plea offer based on this misunderstanding[.]” (Doc. No. 16 at 13-14.) In his Rule 59(e) motion, the petitioner asserts for the first time that if he were given competent advice by counsel, he would have accepted the plea offer of a 12-year sentence. (Doc. No. 19 at 3.) But the petitioner failed to make this argument prior to judgment, or even to allege that he had been offered a plea deal. “[P]arties cannot use a motion [under Rule 59(e)] to raise new legal arguments that could have been raised before a judgment was issued”; rather, such a motion “must either clearly establish a manifest error of law or must ...


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