                                                      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determined that this opinion should not be published and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.




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