United States District Court, E.D. Michigan, Southern Division
GRANTING PETITIONER’S MOTION TO SUPPLEMENT HIS MOTION
FOR RELIEF FROM JUDGMENT , DENYING THE MOTION FOR RELIEF
FROM JUDGMENT , DENYING PETITIONER’S MOTION FOR
RELEASE ON BAIL , DENYING PETITIONER’S MOTION TO
GRANT THE PENDING MOTIONS , AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
Corbett O’Meara United States District Judge
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.
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
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
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).
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.
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)
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