Martinez v. Johnson ( 1999 )

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.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-96-CV-695
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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that this opinion should not be published and is not precedent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. § 2254case); 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.