Martinez v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 1999
• Docket: 98-50684
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50684 Summary Calendar

DOMINGO VALDEZ MARTINEZ,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. A-96-CV-695 - - - - - - - - - - August 17, 1999

Before SMITH, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

On May 12, 1998, the district court entered an order denying

petitioner’s petition for habeas corpus under 28 U.S.C. § 2254.

The order contains the analysis and the reasons for the decision

and is therefore not a "separate document" judgment as required

by Fed. R. Civ. P. 58. Respondent requests that the appeal be

dismissed on the ground that the district court failed to comply

with Rule 58.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50684 -2-

Rule 58 applies to a habeas corpus proceeding. Townsend v.

Lucas, 745 F.2d 933, 933-34 (5th Cir. 1984) (28 U.S.C. § 2254

case); see also Sassoon v. United States, 549 F.2d 983, 984 (5th

Cir. 1977) (28 U.S.C. § 2255 motion); Rule 11 of the Rules

Governing Section 2254 Cases in the United States District

Courts. Although the separate document requirement is not

jurisdictional and may be waived by the parties, Hanson v. Town

of Flower Mound, 679 F.2d 497, 502 (5th Cir. 1982), the

requirement must be enforced if an appellee objects to the

district court’s failure to enter judgment on a separate

document. Seal v. Pipeline, Inc., 724 F.2d 1166, 1167 (5th Cir.

1984). Consequently, the APPEAL IS DISMISSED. Id. Petitioner

may rectify the lack of a separate document judgment by a motion

to the district court for entry of judgment. Petitioner may then

appeal from the judgment within the time prescribed by Fed. R.

Civ. P. 4(a)(1). See Townsend, 745 F.2d at 934. If a new appeal

is taken after compliance with Rule 58, it may be submitted to

this court without further briefing. Seal, 724 F.2d at 1167.

APPEAL DISMISSED.