Johnson v. Washburn

Filing 21

MEMORANDUM AND ORDER: The motion to alter or amend (Doc. No. 19) is DENIED. Signed by District Judge Aleta A. Trauger on 7/9/2019. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TIMOTHY JOHNSON,
Petitioner,
v.
RUSTY WASHBURN,
Respondent.

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Case No. 3:17-cv-01278
Judge Trauger

MEMORANDUM AND ORDER
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

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The petitioner was originally charged with tampering with evidence, resisting arrest, and
the sale of cocaine in a drug-free school zone, in case number 2012-B-1770. After the petitioner
pled guilty to resisting arrest, the jury convicted him of tampering with evidence but was unable
to reach a verdict on the drug charge, resulting in a mistrial on that count. The petitioner was
subsequently re-tried on the drug charge, and convicted, in case number 2014-B-1187. (Doc. No.
16 at 1–2.)
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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-

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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 present newly discovered evidence.” Roger Miller Music, 477 F.3d at 395 (citations
omitted). Thus, the petitioner’s new argument that he was prejudiced by counsel’s failure to ensure
his understanding of potential sentence enhancement is not properly presented under Rule 59(e).
The third argument of the petitioner’s motion fails for the same reason. While the petitioner
now cites the Fifth and Fourteenth Amendments as grounds for his claim that counsel should have
objected to the introduction of evidence at his second trial, this argument could have been raised
before judgment was entered against him. Moreover, the Constitution plainly does not prohibit the
use of a lawfully obtained item of evidence to pursue a criminal defendant’s conviction on multiple
charges or in multiple trials.
Finally, the petitioner’s extraneous references to the indictment’s failure to “identify the
name of the school . . . that [he] was within . . . 1000 ft of”; the prejudice he suffered as a result of
the respondent’s failure to file the voir dire transcript in this court; counsel’s ineffectiveness during
voir dire; and prejudice from the mention of § 39-17-432 in front of the jury prior to its
determination of his guilt of the offense charged under § 39-17-417 (Doc. No. 19 at 3–4) are all

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attempts to re-argue the case or present arguments that should have been before the court at the
time judgment entered. The petitioner has not shown any clear error of law or need for relief in
order to prevent manifest injustice. Accordingly, relief under Rule 59(e) is not warranted. See
Roger Miller Music, 477 F.3d at 395; Henderson, 469 F.3d at 496.
In light of the foregoing, the motion to alter or amend (Doc. No. 19) is DENIED.
It is so ORDERED.

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Aleta A. Trauger
United States District Judge

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