           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 8, 2008
                                       No. 07-51380
                                                                      Charles R. Fulbruge III
                                                                              Clerk


ANDRE HAYGOOD,

                                                  Petitioner-Appellee,

v.

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                                  Respondent-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 5:06-CV-26




Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*


       The state appeals the conditional grant of a writ of habeas corpus to Andre
Haygood. We affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-51380

                                        I.
      This case is before us for the second time. See Haygood v. Quarterman,
239 F. App’x 39 (5th Cir. 2007). The underlying facts were laid out in our earlier
opinion:
             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-dis-
      covered evidence, in which Mr. Haygood asserted that a man named
      Sean Jones, while incarcerated, told another inmate, Lucas Huckle-
      berry, 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 law-
      yer 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. Huckleberry’s testi-
      mony as inadmissible hearsay, holding that Mr. Jones’s statements
      did not rise to the level of statements against his penal interest. Ac-
      cordingly, 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 discretion-
      ary 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 par-
      ties 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 Amend-
      ment privilege only to then rule that Mr. Huckleberry’s testimony
      was inadmissible hearsay because Mr. Jones’s statements were not
      against his penal 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

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                                 No. 07-51380

      result, the magistrate judge declined to vacate Mr. Haygood’s con-
      viction, 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 Direc-
      tor 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.

Id. at 40-41.
      We dismissed the original appeal as untimely and found the Federal Rule
of Civil Procedure 59(e) motion untimely as well. Id. at 41. The state therefore
urged that we treat the untimely rule 59(e) motion as a timely Federal Rule of
Civil Procedure 60(b)(4) motion. Id. Because the ruling of the magistrate judge
(sitting by consent and hereinafter referred to as the district court) could not
withstand rule 59(e)’s abuse of discretion reviewSSmuch less the de novo review
required of rule 60(b)(4)SSwe vacated and remanded with instruction to deter-
mine whether a clearly established federal constitutional right had been violated
and, if so, whether the error was harmless. Id. at 42.
      The district court ordered the parties to submit briefs consonant with our
prompt. Haygood filed first, and in addition to addressing the prompted issue,
he objected to our exercise of jurisdiction. The state replied. The court agreed
with Haygood and found that it lacked jurisdiction to rule on the state’s post-
judgment motion, because this court had determined the motion was untimely.
The state appealed and moved the district court to stay its order, but the court
refused.
      The state then filed a second post-judgment motion, explicitly labeled a
rule 60(b) motion, which raised the same claims as had the original rule 59(e)

                                       3
                                   No. 07-51380

motion. The court denied that motion as well. The state appealed again; we
stayed the judgment.


                                         II.
      On remand, the district court initially declined our directive requiring an
inquiry into whether the right asserted by Haygood was clearly established, and
if so, whether the violation of that right was harmless. Our opinion deemed the
state’s rule 59(e) motion to have been untimely. According to the district court,
that holding stripped this court of its power to review the appeal, because the
requirement that post-trial motions be timely is jurisdictional. See United States
Leather, Inc. v. H&W P’ship, 60 F.3d 222, 225 (5th Cir. 1995). Failure to raise
a post-trial motion in a timely manner deprives the district court of jurisdiction
to alter or reconsider its judgment. Id. It followed, according to the district
court, that, because we had held the original notice of appeal was untimely,
there was nothing for that courtSSor this oneSSto review.
      The state urges that this was error and contrary to the law of the case doc-
trine, which requires courts to comply with the dictates of a superior court on
remand. “On remand, the only issues properly before the district court [are]
those that [arise] from the remand.” United States v. Griffith, 522 F.3d 607, 610
(5th Cir.), petition for cert. filed (U.S. June 25, 2008) (No. 08-5022). Further, “ab-
sent manifest error, or an intervening change in the law, an appellate court’s de-
cision of a legal issue, whether explicitly or by necessary implication, establishes
the law of the case and must be followed in all subsequent proceedings in the
same case.” Carnival Leisure Indus., Ltd. v Aubin, 53 F.3d 716, 718-19 (5th Cir.
1995). The district court apparently believed we had committed manifest error
by entertaining the substance of the appeal at all following our finding the rule
59(e) motion untimely. That view was mistaken.
      Our caselaw requires that

                                          4
                                      No. 07-51380

        [w]hether this court treats the motion under Rule 59(e) or Rule
        60(b) depends on the time at which the motion is served. If the mo-
        tion is served within ten days of the rendition of judgment, the mo-
        tion falls under Rule 59(e); if it is served after that time, it falls
        under Rule 60(b).

Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 n.3 (5th Cir. 1991). Even if only im-
pliedly, we necessarily treated the untimely rule 59(e) motion as a timely rule
60(b) motion. It is also implausible to argue that such implication was too sub-
tle, in light of our addressing the possibility of reviewing the state’s motions un-
der the rule 59(e) or 60(b)(4) standards. See Haygood, 239 F. App’x at 41-42. If
we considered the appealSSand the only legitimate way in which we could have
done so was to review the motion under rule 60(b)SSthen that is in fact what we
did. Our decision to forgo an explicit decision on which rule to follow was expli-
citly aimed only at the standard of review. Id. at 42. We conclude that both this
court and the district court have jurisdiction over the instant case.


                                            III.
        We now review the district court’s ruling on the state’s second post-judg-
ment motion. Ordinarily, post-judgment motions are reviewed for abuse of dis-
cretion. Hand v. United States, 441 F.2d 529, 530 (5th Cir. 1971). There is no
discretion on the part of the district court with respect to rule 60(b)(4),1 however,
because, “either a judgment is void or it is valid.” 11 CHARLES ALAN WRIGHT ET
AL.,   FEDERAL PRACTICE AND PROCEDURE § 2862, at 324 (2d ed. 1995); see Carter
v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998). The state presses that the dis-
trict court erred in refusing to grant its post-judgment motion under either rule




        1
        Rule 60(b)(4) provides that a party may be relieved from final judgment if “the judg-
ment is void.” FED. R. CIV. P. 60(b)(4) (amended eff. Dec. 1, 2007).

                                             5
                                        No. 07-51380

60(b)(4) or (6).2 We disagree.


                                               A.
       We do not accept the state’s theory that the judgment is void. A judgment
is void only if “the court that rendered it lacked jurisdiction of the subject mat-
ter, or of the parties, or if it acted in a manner inconsistent with due process of
law.” 11 WRIGHT ET AL., supra, § 2862, at 326-329 (footnotes omitted). The state
does not allege either of these bases for granting the rule 60(b)(4) motion. To the
extent that we have read this standard more broadly to encompass the “failure
to follow relevant law,” Carter, 136 F.3d at 1006, such is not the case here.
       Though the state obviously finds fault with the district court’s ruling re-
garding the existence of a clearly established right and the harm resulting from
its violation, a difference of legal opinion is not sufficient to re-open judgment.3
Nor do we follow the state in believing that the district court acted beyond its
power when it fashioned relief. Courts have broad discretion in devising habeas
relief. See Hilton v. Braunskill, 481 U.S. 770, 775 (1987).
       It is true that our prior opinion said that this circuit frowns on grants of
habeas writs that compel state courts to reopen proceedings. Haygood, 239 F.
App’x at 42. But this was not an absolute bar. Instead, “the real thrust of the
order is to alert the state court to the constitutional problem and notify it that
the infirmity must be remedied.” Smith v. Lucas, 9 F.3d 359, 367 (5th Cir.
1993). The infirmity in this case dealt with the interaction of the Fifth Amend-


       2
        Rule 60(b)(6) states that a party may be relieved from final judgment for “any other
reason that justifies relief.”
       3
        Although we noted in our earlier opinion that the district court did not directly address
the issues required by 28 U.S.C. § 2254(d) (Supp. V 2005), we simultaneously noted that the
court did acknowledge the standard. Haygood, 239 F. App’x at 42. In other words, we de-
termined not that the court used inappropriate bases for deciding the case, but that the bases
needed to be made more explicit. The ruling on the rule 60(b) motion satisfies that.

                                               6
                                        No. 07-51380

ment privilege against self-incrimination with the Sixth Amendment right to
compulsory process. The district court conditioned Haygood’s release on the
state court’s taking note of the full constitutional ramifications of that interac-
tion.
        For a judgment to be void, the court must have been acting extra-legally.
Because there is no reason to believe the court lacked jurisdiction or acted out-
side the scope of the law, we do not find error in the refusal to vacate or change
its judgment.


                                               B.
        We also do not agree that rule 60(b)(6) requires re-opening the judgment.
That rule sits atop a deep well of equity. Harrell v. DCS Equip. Leasing Corp.,
951 F.2d 1453, 1458 (5th Cir. 1992). But even deep wells have bottoms. A re-
quest under the rule is granted only when “extraordinary circumstances” ob-
tain.4 Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 748 (5th Cir. 1995). The de-
termination of such circumstances is left to the sound discretion of the district
court. 11 WRIGHT, supra, § 2864, at 376. The state has not convinced us that
the full merits of this case had not been adjudicated before entry of judgment,
much less after the back-and-forth that this case enjoyed. See Warfield v. Byron,
436 F.3d 551, 555-56 (5th Cir. 2006). Without compelling reasons for believing
a district court should have used its equity powers, there is no reason to force the
court to do so. The state has not produced such reasons.




        4
         Rule 60(b)(6) is not an alternative to an appeal, especially where a mistake of law is
at issue. See Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002). The state’s arguments sound
in their entirety in the alleged legal errors the district court made. Moreover, there is no dis-
pute that this motion is before us precisely because the state did not timely appeal.

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                                  No. 07-51380

                                       IV.
      The issue is not whether we agree with the result reached by the district
court, nor, properly speaking, is the question whether the district court actually
reached the correct result. Rather, the issue is whether that court had discretion
in affirming its judgment. It did, so that is all we review here.
      AFFIRMED.




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