Walter Johnson v. M. Evans

MEMORANDUM

Walter Johnson appeals the district court’s denial of his petition for a writ of habeas corpus. He raises a single issue on appeal: whether the magistrate judge erred as a matter of law when he failed to construe a pro se filing, styled as a Rule 60(b) motion, as Johnson’s attempt to amend his pending habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Johnson filed a pro se motion in August 2005 (the “August motion”) when his habeas petition was pending. Johnson styled that document as a “Motion for Relief From Judgment/Vacate Judgment F.R.C.P. 60(b)(1)(2)(3)(4)(6) Void Judgment (Fraud) Vacate State Judgment F.R.C.P. 60(b)(H) Brady.” In it, Johnson reiterated at least one argument from his habeas petition and raised additional instances of ineffective assistance of counsel. He also asserted that DNA evidence recovered at the scene did not point to him, and attached an earlier motion from his state appellate counsel that faulted his trial counsel for withdrawing a “heat of passion” defense. Johnson asked the district court “to rule on this motion 60(b) before it rules on the writ of habeas corpus.” The magistrate judge denied the August…