Nash v. USA

Filing 121

***Vacated per 123 Order*** Findings, Conclusions, and Recommendation re: the 120 Motion to alter or amend Judgment under rule 59(e). Based on the relevant filings and applicable law, the motion should be DENIED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 10/6/2021) (mcrd) Modified on 10/14/2021 (mcrd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ALLEN NASH,
ID # 52304-177,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:20-CV-66-B-BH
No. 3:15-CR-478-B(1)
Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Before the Court is the Motion to alter or amend Judgment under rule 59(e), received on
October 4, 2021 (doc. 120). Based on the relevant filings and applicable law, the motion should
be DENIED.
I.

BACKGROUND

Allen Nash (Movant) filed a federal habeas petition under 28 U.S.C. § 2255 that was
received on January 10, 2020. (See doc. 1.) After a series of motions, supplements, and notices
to supplement, support, or amend his claims, and after two orders to file a final amended § 2255
motion setting forth all claims he sought to pursue in one filing, Movant filed a second final
amended § 2255 motion on February 10, 2021.2 (See doc. 59.) On August 26, 2021, it was
recommended that the § 2255 motion be denied with prejudice. (See doc. 93.) Movant filed
objections to the recommendation that were received on September 8, 2021. (See doc. 104.) The

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By Special Order No. 3-251, this habeas case has been automatically referred for findings, conclusions, and
recommendation.

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Before filing his second final amended § 2255 motion, Movant was warned that he would not be granted further
opportunities to amend his motion, and that any submissions not specifically permitted by the order would either be
returned to him or would not be considered. (See doc. 51 at 2-3.) Nevertheless, he has continued to file motions and
supplements to add to or support the claims in his second final amended § 2255 motion. (See docs. 61, 68, 70-71, 7374, 76-77, 79, 81, 83, 85, 87-88, 91, 94-96, 98-99, 101-102.) The motions have been denied as redundant, unnecessary,
and not permitted. (Id., docs. 63, 69, 72, 75, 78, 80, 82, 84, 86, 89, 92, 97, 100, 103.)

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recommendation was accepted over his objections, the § 2255 motion was denied with prejudice,
and judgment was entered on September 10, 2021. (See docs. 105, 106.) Movant now moves to
alter or amend the judgment under Federal Rule of Civil Procedure 59(e). (See doc. 120.)
II.

FED. R. CIV. P. 59(e)

To prevail on a motion to alter or amend a judgment under Rule 59(e), the moving party
must show (1) an intervening change in controlling law; (2) the availability of new evidence not
previously available; or (3) a manifest error of law or fact. See Schiller v. Physicians Resource
Group Inc., 342 F.3d 563, 567 (5th Cir. 2003). A Rule 59(e) motion is “not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered or raised before the
entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Although
courts have “considerable discretion” to grant or to deny a Rule 59(e) motion, they use the
“extraordinary remedy” under Rule 59(e) “sparingly.” Id. When considering a motion to alter or
amend a judgment, “[t]he court must strike the proper balance between two competing
imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts.”
Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).
Here, the substance of Movant’s Rule 59(e) states:
At trial the alleged victim R.J. testified that she was 18 years old in 2014, (See Doc
No. 266 at 258) R.J. testified that she was arrested on December 1st, 2014, for
Prostitution in Dallas County by the Dallas Police department and around
November 2015, the charge was dismissed (See Doc No. 267 at 32-33, 148) The
government called ATF Agent Scott Satcher, Satcher testified to government’s
Exhibit 16 which is a photo of four bullets. (See Doc No. 270 at 105) At trial the
government failed to Prove Pititioner’s [sic] guilt beyond a reasonable doubt (See,
Doc. 223-224). In violation of the fith [sic] amendment.
(doc. 120 at 1.) He does not allege new evidence or a change in the law, and he has not
demonstrated a manifest error of law or fact. He instead references factual allegations and
arguments which he raised in his second final amended § 2255 motion, and that he has previously
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asserted and reasserted numerous times.

As discussed in the recommendation, Movant’s

conclusory allegations that there was no evidence relating to each count of conviction were refuted
by the record. (See doc. 93 at 4-5.) The recommendation also noted that Movant was not entitled
to § 2255 relief on his conclusory claims. (See id. at 5, 8, 10-11.) His conclusory statements and
attempts to rehash the same arguments from his § 2255 motion and previous filings here do not
warrant relief under Rule 59(e). Further, the trial testimony cited by Movant is not “new evidence”
for purposes of Rule 59(e) relief.
Because Movant has not shown the availability of new evidence not previously available,
or that a manifest error of law or fact was made, he has not shown that he is entitled to relief under
Rule 59(e).
III.

RECOMMENDATION

The Motion to alter or amend Judgment under rule 59(e), received on October 4, 2021
(doc. 120), should be DENIED.
SIGNED this 6th day of October, 2021.

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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions, and recommendation shall be served on all parties
in the manner provided by law. Any party who objects to any part of these findings, conclusions,
and recommendation must file specific written objections within 14 days after being served with
a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection
must identify the specific finding or recommendation to which objection is made, state the basis
for the objection, and specify the place in the magistrate judge’s findings, conclusions, and
recommendation where the disputed determination is found. An objection that merely incorporates
by reference or refers to the briefing before the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from appealing the factual findings and
legal conclusions of the magistrate judge that are accepted or adopted by the district court, except
upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417
(5th Cir. 1996).

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