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Johnson v. Prelesnik

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

March 29, 2018

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

         ORDER DENYING PETITIONER'S MOTION FOR AN INDICATIVE RULING UNDER RULE 62.1 [55], DENYING THE MOTION FOR AN EMERGENCY DECISION [54], GRANTING IN PART AND DENYING IN PART THE MOTION FOR EMERGENCY REVIEW REGARDING OFFICER STAWIASZ [56], DENYING THE MOTION TO “REVISE” JURISDICTION [58], GRANTING THE MOTIONS TO ADMIT EXHIBITS [59] AND TO AMEND OR SUPPLEMENT THE MOTION FOR RELIEF FROM JUDGMENT [60], AND DENYING THE MOTIONS TO RENEW THE BOND REQUEST [61] AND FOR EMERGENCY REVIEW OF THE MOTION FOR BAIL [62]

          Honorable John Corbett O'Meara, United States District Judge.

         I. Background

         This habeas corpus case has come before the Court on petitioner Joseph Johnson's post-judgment motions. Petitioner was convicted of second-degree murder following a bench trial in 1985 and then sentenced to life imprisonment. The evidence at trial established that Petitioner

and his accomplice were acting together to accomplish the same end, i.e., taking of money and drugs [from the victim] in order to settle a narcotics-related dispute. In pursuit of this end, the victim was shot. The actual shooter was the accomplice. According to one prosecution witness, [Petitioner] later encouraged his accomplice to shoot the victim again in the head.

People v. Johnson, No. 87847 (Mich. Ct. App. Sept. 15, 1988). The Michigan Court of Appeals affirmed Petitioner's conviction, see id., and the Michigan Supreme Court denied leave to appeal.

         Petitioner commenced this action in 1990. He argued that the prosecution withheld the criminal record of Edith Gibson (“Gibson”), a key prosecution witness. He also maintained that the state trial court deprived him of an evidentiary hearing on whether Gibson committed perjury when she testified at his trial that she had no prior convictions. This Court's predecessor, former United States District Judge Horace W. Gilmore, denied the habeas petition on the basis that any failure to provide impeachment evidence about Gibson or to conduct an evidentiary hearing 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 2014, Petitioner began seeking permission from the United States Court of Appeals for the Sixth Circuit for permission to file a second or successive habeas petition. Petitioner argued that newly-obtained transcripts from his co-defendant's trial showed that Petitioner's co-defendant, not Petitioner, ordered Gibson to empty the victim's pants pockets. The Sixth Circuit denied Petitioner's motions on grounds that Petitioner could have discovered the information sooner and that the evidence did not establish his innocence.

         In 2016, Petitioner began filing post-conviction motions in this case. In a motion for relief from judgment, he argued that the assistant Michigan attorney general who represented the State in this case committed a fraud on the court by submitting false affidavits from the trial prosecutor and the officer in charge of Petitioner's criminal case. The affidavits addressed the issue of whether the prosecutor and the officer knew of Gibson's criminal record at the time of Petitioner's trial and whether Gibson was promised anything for her testimony. (ECF No. 41).

         This Court denied Petitioner's motion for relief from judgment on the basis that Petitioner had failed to prove the essential elements of a fraud-on-the-court claim. See Order dated March 15, 2017 (ECF No. 44). Petitioner appealed the Court's order and at the same time moved to alter or amend the order denying relief from judgment. (ECF Nos. 46 and 48). Petitioner also moved for release on bond. (ECF Nos. 50 and 52). On August 24, 2017, the Court denied Petitioner's motions on the basis that he was not entitled to release on bond and that the Court lacked jurisdiction to alter or amend its previous order while Petitioner's appeal was pending in the Sixth Circuit. (ECF No. 53). Now before the Court are Petitioner's subsequent motions.

         II. Discussion

         A. The Motions for an Indicative Ruling (ECF No. 55) and for an Emergency Decision on the Motion for an indicative Ruling (ECF No. 54)

         In a motion for an indicative ruling, Petitioner asks the Court to state either (1) that it would grant his prior motion to alter or amend the order denying his motion for relief from judgment or (2) that the motion raises a substantial issue. The legal basis for Petitioner's motion is ...


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