Boudreaux v. Tanner et al
ORDER AND REASONS DISMISSING 29 Motion for Relief from Judgment. Signed by Judge Ivan L.R. Lemelle on 1/12/2017. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GUY BOUDREAUX, JR.
ROBERT C. TANNER, ET AL.
ORDER AND REASONS
“Motion Showing Objections were Timely Filed and Request for
IT IS ORDERED that the motion (Rec. Doc. 29) is DISMISSED.
The record and law, even after considering Petitioner’s untimely
objections (Rec. Doc. 28), clearly support the Magistrate Judge’s
recommendations. Petitioner fails to show that he is entitled to
statutory tolling, equitable tolling, or the McQuiggin v. Perkins,
133 S. Ct. 1924 (2013) actual innocence exception. This § 2254
request for habeas corpus relief remains untimely for reasons
assigned by this opinion, our prior opinion, and by the Magistrate
Judge. See Rec. Docs. 24-25.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In state court, Petitioner was convicted of committing forty-
seven counts of possession of pornography involving juveniles and
juveniles. Rec. Doc. 24 at 1 (citing State Rec. Vols. 4, trial
transcript at 857-59; 1, minute entry dated November 11, 2010; 1,
jury verdict form). On January 31, 2011, he was sentenced to ten
years’ imprisonment on each of the possession charges and five
years’ imprisonment on each of the attempted possession charges,
to run concurrently.
Id. at 1-2 (citing State Rec. Vols. 4,
January 31, 2011 transcript; 1, January 31, 2011 minute entry).
The convictions and sentences were affirmed by the Louisiana First
(citing State v. Boudreaux, 11-833 (La. App. 1 Cir. 11/9/11); 2011
8/22/12); 97 So. 3d 352 (memorandum opinion)).
conviction relief in state court; both the district court and the
Louisiana First Circuit denied relief. Rec. Doc. 24 at 2 (citing
State Rec. Vols. 6, May 29, 2015 Order; 7). The Louisiana Supreme
application. Id. (citing State ex rel. Boudreaux v. State, 15-2168
(La. 3/14/16); 186 So. 3d 645 (memorandum opinion)).
On March 11, 2016, Petitioner filed an application in this
Court seeking federal habeas corpus relief. Rec. Doc. 1. After the
state filed an opposition memorandum (Rec. Doc. 21) and Petitioner
filed a reply (Rec. Doc. 22), Magistrate Judge Knowles issued a
application be dismissed with prejudice as untimely (Rec. Doc.
24). The report and recommendation was filed into the record on
October 6, 2016. Rec. Doc. 24. Any objections to the report were
due within fourteen days, by October 20, 2016. Id.
On October 27, 2016, “having considered the petition, the
record, the applicable law[,] and the Report and Recommendation .
. . and the failure of any party to file any objection to the . .
. Report and Recommendation,” we issued an order adopting the
report and dismissing Petitioner’s application with prejudice.
Rec. Doc. 25. Eight days later, on November 4, 2016, Petitioner’s
objections to the report and recommendation were filed into the
record. See Rec. Doc. 28.
In the instant motion, filed on December 12, 2016, Petitioner
moves for reconsideration under Federal Rule of Civil Procedure
60(b). Rec. Doc. 29. He claims that his objections were timely
filed and should have been considered by the Court. Id. at 1.
Specifically, he argues that he received a copy of the report and
recommendation on October 14, 2016 and he submitted his objections
to prison officials thirteen days later, on October 27, 2016. Id.
LAW AND ANALYSIS
“The Federal Rules of Civil Procedure do not specifically
recognize a motion for reconsideration.” Jenkins v. Bristol-Myers
Squibb, No. 14-2499, 2016 WL 5874984, at *5 (E.D. La. Oct. 7, 2016)
(citing St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d
336, 339 (5th Cir. 1997)). Nonetheless, “[a] motion asking that
the court reconsider a prior ruling is evaluated either as a motion
to alter or amend a judgment under Federal Rule of Civil Procedure
59(e) or as a motion for relief from a final judgment, order[,] or
proceeding under Federal Rule of Civil Procedure 60(b).” In re
FEMA Trailer Formaldehyde Prods. Liab. Litig., No. 07-1873, 2011
WL 6130788, at *3 (E.D. La. Dec. 7, 2011) (internal quotation marks
omitted). Here, Petitioner moves under Rule 60(b), which provides
that a court, “[o]n motion and just terms,” may relieve a party
“from a final judgment, order, or proceeding” due to:
mistake, inadvertence, surprise, or excusable
newly discovered evidence that, with reasonable
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
the judgment is void;
the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it
prospectively is no longer equitable; or
any other reason that justifies relief.
“The purpose of Rule 60(b) is to balance the principle of finality
of a judgment with the interest of the court in seeing that justice
is done in light of all the facts.” Hesling v. CSX Transp., Inc.,
396 F.3d 632, 638 (5th Cir. 2005) (citing Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981)).
After a report and recommendation is issued by a magistrate
judge, “[w]ithin fourteen days after being served with a copy, any
party may serve and file written objections to such proposed
findings and recommendations . . . .” 28 U.S.C. § 636(b)(1); see
also FED. R. CIV. P. 72(b)(2) (“Within 14 days after being served
with a copy of the recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations”). If such objections are made, “[a] judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.” Id. However,
A party’s failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge’s report and recommendation within 
days after being served with a copy shall bar that party,
except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the district court,
provided that the party has been served with notice that
such consequences will result from a failure to object.
Douglass v. United Serv. Auto Ass’n, 79 F.3d 1415, 1430 (5th Cir.
Here, Petitioner argues that he filed his written objections
within fourteen days after physically receiving a copy of the
report and recommendation. Rec. Doc. 29 at 1. Even though the
report was filed into the record on October 6, 2016, Petitioner
did not receive a copy through the Elayn Hung Correctional Center’s
legal mail process until October 14, 2016. Id. Because Petitioner
subsequently gave his objections to prison officials on October
27, 2016, Petitioner argues that he timely filed his objections.1
In essence, we must decide if Petitioner was “served” with a copy
of the report and recommendation on the date that it was filed
into the record or on the date that he physically received a copy
through the prison mail system.
In Walker v. Savers, the Fifth Circuit stated that a prisoner
magistrate judge’s report and recommendation.” 583 F. App’x 474,
475 (5th Cir. 2014) (citing 28 U.S.C. § 636(b)(1)) (emphasis
added); see also FED. R. CIV. P. 72(b)(2)). In that case, the
magistrate judge’s report and recommendation was entered into the
record on March 8 and the petitioner’s objections were placed into
the prison’s mail system on March 22. Id. The envelope containing
the objections was postmarked March 26, but the Fifth Circuit found
that if they were mailed on March 22, then they were timely “filed
and served.” Id. This suggests that the date on which the court
was to start counting was March 8 (the date the report and
We accept Petitioner’s reliance on the prison mailbox rule, which essentially
provides that a document is considered filed by a pro se prisoner on the date
that he or she hands the document to prison officials for mailing. See Thompson
v. Rasberry, 993 F.2d 513, 515 (5th Cir. 1993). Thus, Petitioner’s objections
were filed on October 27, 2016, even though they were not entered into the
record until November 4, 2016. See Rec. Doc. 28. Instead, the issue before us
is whether Petitioner had to file objections within fourteen days from the date
the report and recommendation was filed into the record (October 6, 2016) or
within fourteen days from the date the report was received by Petitioner
(October 14, 2016).
recommendation was entered into the record, not necessarily the
date that the prisoner received a copy). Id.
Thus, Petitioner had to file his objections in this case
within fourteen days of October 6, 2016, not October 14, 2016.
This rule, while seemingly difficult for pro se prisoners, makes
practical sense. If a district court were required to give parties
fourteen days from their receipt of a magistrate judge’s report
and recommendation, it could be waiting indefinitely. There is no
way for the court to know when a party physically receives a copy
of his or her mail. If a particularly cautious court waited six
months after a report and recommendation was filed to issue an
order adopting it, only to be faced with objections filed two years
later by a pro se prisoner who claimed that he received a copy of
the report a mere week before he filed his objections, would the
court have to vacate its earlier order? Such a rule would cause
Nonetheless, Federal Rule of Civil Procedure 6(d) provides
that when a party must act within a specified time after being
served and service is made by mail, “3 days are added after the
period would otherwise expire . . . .” See also FED. R. CIV. P.
72(b) Advisory Committee Notes to 1983 Addition (“the -day
period . . . is subject to Rule 6(e) which provides for an
additional 3-day period when service is made by mail”); Pearson v.
Prison Health Servs., 519 F. App’x 79, 81 (3d Cir. 2013). Thus, in
Daker v. Commissioner, Georgia Department of Corrections, the
Eleventh Circuit found that a pro se prisoner merely needed to
recommendation was filed in order for the objections to be deemed
timely. 820 F.3d 1278, 1286 (11th Cir. 2016) (citing FED. R. CIV.
P. 72(b)(2); 6(d)); Washington v. United States, 243 F.3d 1299,
1301 (11th Cir. 2001) (“Absent evidence to the contrary in the
form of prison logs or other records, we will assume that [the
petitioner’s] motion was delivered to prison authorities the day
recommendation was issued on February 25, 2014 and the Eleventh
objections on March 13, 2014—16 days after the magistrate judge
issued the report and recommendation,” the objections were timely.
Daker, 820 F.3d at 1286.
Here, even with the additional three days allowed under Rule
6, Petitioner still would have had to sign and mail his objections
by October 23, 2016. Instead, they were signed and mailed on
October 27, 2016.
We are not unaware of, nor unsympathetic to, the difficulties
facing pro se prisoners. In Grandison v. Moore, a magistrate
judge’s report was dated June 17, 1985. 786 F.2d 146, 147 (3d Cir.
1986). However, the prisoner actually received the report and
inadvertently sent to a state correctional institution where he
was previously housed. Id. at 148. The prisoner then mailed his
objections on July 3, 1985, in an envelope postmarked July 5, 1985,
such that they were actually filed into the record on July 8, 1985.
Id. at 149. All of these dates were within 10 days of the prisoner’s
receipt of the report. Id.2 After determining that the prisoner’s
objections were significant, the Eleventh Circuit found that “even
assuming the objections were not timely filed as a matter of law,
it was an abuse of discretion of the district court not to treat
them as timely and to consider them on the merits.” Id. The Third
Circuit continued to describe the “recurring problem of service of
legal mail on pro se prisoners, as to which there is a surprising
dearth of precedent.” Id.
Fed. R. Civ. P. 5(b) merely provides that service of
papers other than the complaint may be made by mailing
a copy to the party and that such service is complete
upon mailing. Rule 6(e) provides that when service is
made by mail, 3 days shall be added to the period
prescribed for a response or subsequent act. Even for
the general population, the 3 day period allowed for
mail delivery reflects an optimism about postal service
that regrettably no longer accords with our experience.
When applied to prisoner mail, that time may be
critically inadequate. Prisoners have no control over
when prison officials will actually deliver mail. Also,
they have no control over their whereabouts, and may be
temporarily transferred out of the prison for court
proceedings or placed in administrative or punitive
segregation which can delay mail delivery.
A previous version of Rule 72 provided that objections had to be filed within
10 days after the person was served with a copy of the magistrate judge’s report
and recommendation. See FED. R. CIV. P. 72 Advisory Committee Notes 2009 Amendment
(“The times set in the former rule at 10 days have been revised to 14 days.”).
The Supreme Court recognized the unique circumstances of
prisoners when it created an exception to the time for
filing a notice of appeal by holding in Fallen v. United
States, 378 U.S. 139 . . . (1964), that a notice of
appeal was timely when a prisoner did all that he could
to deliver a notice to the district court on time. See
also Rothman v. United States, 508 F.2d 648 (3d Cir.
1975). While Fallen involved a mailing from a prisoner
and its receipt in the Clerk’s Office, whereas this case
involves service on the prisoner, the general principles
are similar. The Federal Rules expressly provide that
they shall be construed to secure the just determination
of every action, Fed. R. Civ. P. 1. Although the problem
of insufficient time to meet the short ten day time
periods has been ameliorated to some extent by the recent
amendment to Fed. R. Civ. P. 6(a), which now excludes
intermediate Saturdays, Sundays and legal holidays when
the period of time prescribed is less than 11 days,
justice requires that the district court bears in mind
the particular circumstances regarding prisoner receipt
of mail in those instances where they have discretion in
district court to consider the prisoner’s objections. Id.
Grandison, however, is not binding on this Court and is
nevertheless distinguishable. First, Petitioner does not claim
that his mail was inadvertently sent to the wrong location and,
second, his objections were not postmarked (November, 1, 2016) and
filed (November 4, 2016) within fourteen days of his receipt of
the report and recommendation (October 14, 2016). Plus, upon
receiving the report,
which included a clear warning of the
consequences that he would face if he failed to timely object (Rec.
Doc. 24 at 10-11), Petitioner could have immediately mailed a
request for an extension of time within which to file objections
(FED. R. CIV. P. 6(b)(1) (“When an act may or must be done within a
specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a
request is made, before the original time or its extension expires;
or (B) on motion made after the time has expired if the party
failed to act because of excusable neglect”)). He did not.
magistrate judge’s report and recommendation on October 21, 2016,
the day after Petitioner’s objections were due. Instead, we waited
another six days. Having received neither objections nor a request
for an extension of time, and after considering the petition,
recommendation dismissing this case with prejudice. We have now
also considered Petitioner’s untimely objections and the instant
motion and we decline to reconsider our earlier ruling.
New Orleans, Louisiana, this 12th day of January, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
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