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Johnson v. Prelesnik

United States District Court, E.D. Michigan, Southern Division

March 15, 2017

JOSEPH JOHNSON, Petitioner,
v.
JOHN PRELESNIK, Respondent.

         ORDER GRANTING PETITIONER’S MOTION TO SUPPLEMENT HIS MOTION FOR RELIEF FROM JUDGMENT [43], DENYING THE MOTION FOR RELIEF FROM JUDGMENT [41], DENYING PETITIONER’S MOTION FOR RELEASE ON BAIL [40], DENYING PETITIONER’S MOTION TO GRANT THE PENDING MOTIONS [42], AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          John Corbett O’Meara United States District Judge

         This habeas corpus case has come before the Court on petitioner Joseph Johnson’s post-judgment motions, including a motion titled “Emergency Motion to Review Motion for Relief from Judgment Based Upon Fraud on the Court 60(b)(6).” Because there is no prior motion for relief from judgment to review in this case, the Court has construed Petitioner’s motion as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6). Petitioner’s other pending motions include a motion to supplement his motion for relief from judgment, a motion for release on bail, and a motion to grant his pending motions. The Court grants the motion to supplement the motion for relief from judgment, but the other motions will be denied for the reasons given below.

         I. Background

         Following a bench trial in 1985, Petitioner was convicted of second-degree murder and sentenced to life imprisonment. The evidence at trial established that Petitioner aided and abetted his co-defendant in killing Roger Cottingham during an armed robbery. A key prosecution witness was Edith Gibson (Gibson).

         Petitioner commenced this action in 1990, alleging that the prosecution withheld Gibson’s criminal record and that the state court deprived him of an evidentiary hearing on whether Gibson had committed perjury at his trial when she testified that she had no prior convictions. Former United States District Judge Horace W. Gilmore denied the petition on the basis that any failure to provide impeachment evidence concerning Gibson or to conduct an evidentiary hearing on the issue was harmless because the evidence was sufficient to support Petitioner’s conviction without Gibson’s testimony.

         In 1995, Petitioner filed a second habeas corpus petition in which he alleged that his trial and appellate attorneys were ineffective. Judge Gilmore dismissed the petition after concluding that it was a second or successive petition and that Petitioner had abused the writ. See Johnson v. Pitcher, No. 95-cv-76196 (E.D. Mich. Feb. 25, 1997).

         In 2015, Petitioner filed a third habeas corpus petition, claiming that Gibson had testified in his co-defendant’s case that the co-defendant, not Petitioner, ordered Gibson to remove the victim’s pants and empty his pockets. Petitioner claimed that this contradicted Gibson’s testimony at his trial where she stated that he ordered Gibson to remove the victim’s pants and empty his pockets. United States District Judge Arthur J. Tarnow dismissed the 2015 petition for lack of jurisdiction because the United States Court of Appeals for the Sixth Circuit had denied Petitioner’s application for permission to file a second or successive petition raising this issue. See Johnson v. Mackie, No. 15-cv-14233 (E.D. Mich. Jan. 14, 2016). Petitioner now seeks relief from judgment on the basis that the assistant Michigan attorney general who represented the State in this case (Ms. K. Davison Hunter) committed a fraud on the Court by submitting false affidavits to the Court in support of the State’s answer to the habeas petition.

         II. Analysis

         A. Legal Framework

         Petitioner brings his motion for relief from judgment under Federal Rule of Civil Procedure 60(b). This rule

allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence. Rule 60(b)(6), the particular provision under which petitioner brought his motion, permits reopening when the movant shows “any . . . reason justifying relief from the operation of the judgment” other than the more specific circumstances set out in Rules 60(b)(1)-(5).

Gonzalez v. Crosby, 545 U.S. 524, 528-29 (2005) (footnote omitted).

         The Court must determine whether Petitioner’s motion for relief from judgment is, in essence, a habeas corpus petition because a habeas petitioner who wishes to file a second or successive application for the writ of habeas corpus must first “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). “[F]or purposes of § 2244(b) an ...


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