Washington v. United States of America (INMATE3)

Filing 19

OPINION AND ORDER granting 17 MOTION to Alter Judgment; vacating 15 16 opinion and final judgment; directing the Clerk to mail Washington another copy of the recommendation; granting Washington until 12/9/2011 to file his objections to 14 RECOMMENDATION; referring this case back to the magistrate judge for further appropriate proceedings. Signed by Honorable Judge Myron H. Thompson on 11/17/2011. (br, ) Modified on 11/17/2011 to clarify text (br, ).

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MARNAIL WASHINGTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
) CIVIL ACTION NO.
) 2:10cv279-MHT
)
(WO)
)
)
)

OPINION AND ORDER
On September 26, 2011, the magistrate judge entered
a recommendation that the 28 U.S.C. § 2255 motion filed
by petitioner Marnail Washington should be denied because
it

was

not

filed

limitation period.

within

the

controlling

federal-

On October 21, 2011, in the wake of

there being no objections filed to the recommendation,
the

court

entered

an

opinion

and

a

final

judgment

adopting the recommendation.
On November 2, 2011, Washington filed a motion to
alter or amend pursuant to Fed.R.Civ.P. 59(e), in which

1

he states that he never received a copy of the magistrate
judge's recommendation and that, consequently, he was
denied the opportunity to file timely objections to the
recommendation.* Accordingly, he requests that this court
set aside its final opinion and judgment of October 21,
2011,

and

allow

him

to

file

objections

to

the

recommendation.
***
In light of the foregoing and for good cause, it is
ORDERED as follows:
(1) Petitioner Marnail Washington’s motion to
alter or amend pursuant to Fed.R.Civ.P. 59(e)
(Doc. no. 17) is granted.

*Rule 59(e) provides that, “A motion to alter or
amend a judgment must be filed no later than 28 days
after entry of the judgment.”
Although Washington’s
motion was date-stamped "received" in this court on
November 10, 2011, the court under the "mailbox rule"
deems his motion filed on the date he delivered it to
prison authorities for mailing, presumptively November 2,
2011, the day that he signed it. See Houston v. Lack,
487 U.S. 266, 271-72 (1988); Washington v. United States,
243 F.3d 1299, 1301 (11th Cir. 2001).
2

(2) The opinion and final judgment (Doc. nos. 15
& 16) are vacated.
(3) The

clerk

petitioner

of

the

Washington

court
another

is

to
copy

mail

to

of

the

magistrate judge’s recommendation (doc. no. 14).
(4) Petitioner

Washington

is

allowed

until

December 9, 2011, to file his objections to the
recommendation (doc. no. 14).
(5) This case is referred back to the magistrate
judge for further appropriate proceedings.
DONE, this the 17th day of November, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE