Johnson v. Bullard, et al

Filing 53

ORDER Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the objections thereto, the court ADOPTS the magistrate judge's report and ACCEPTS his recommendation. Because Johnson has not sought relief within a reasonable time and has not demonstrated extraordinary circumstances to warrant relief from judgment, the court DENIES Johnson's Rule 60(b) motion. Signed by Judge L Scott Coogler on 9/23/2020. (PSM)

FILED
2020 Sep-23 AM 10:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BRANDON JAYWANN JOHNSON,

)
)
Petitioner,
)
)
v.
)
)
WARDEN STEPHEN BULLARD and )
THE ATTORNEY GENERAL OF
)
ALABAMA,
)
)
Respondents.
)

Case No.: 1:02-cv-02256-LSC-JHE

ORDER
On August 28, 2020, the magistrate judge filed a report recommending the
court deny Petitioner Brandon Jaywann Johnson’s motion for relief from final
judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. (Doc.
49). On September 10, 2020, Johnson filed objections to the magistrate judge’s
report and recommendation. (Doc. 50).
Rule 60(b)(6) permits a party to obtain relief from a judgment or order for
“any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). “Relief from
‘judgment under Rule 60(b)(6) is an extraordinary remedy’” that requires showing
“extraordinary circumstances” to justify reopening an order. Arthur v. Thomas, 739
F.3d 611, 628 (11th Cir. 2014) (citation and quotations omitted). Additionally, “[a]
motion under Rule 60(b) must be made within a reasonable time.” FED. R. CIV. P.
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60(c)(1). What constitutes a reasonable time is determined by considering “whether
the parties have been prejudice by the delay and whether a good reason has been
presented for failing to take action sooner.” BUC Int’l Corp. v. Int’l Yacht Council
Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008) (quotations omitted).
Johnson was found guilty of capital murder under Alabama Code § 13A-540(a)(17). (Doc. 50 at 2-3). He claims that in 2014, he learned the Alabama
legislature intended for Ala. Code § 13A-5-40(a)(17) to combat gang-related
activity. (Id. at 2-3, 6-7, 11). Johnson contends that since the State did not prove he
was engaged in gang-related activity when the victim was killed, no jury could have
found him guilty of capital murder under Alabama Code § 13A-5-40(a)(17). (Id. at
2-6). However, Johnson does not explain in his objections why it has taken him over
six years to seek relief in this court on this ground. Accordingly, Johnson has not
sought relief “within a reasonable time” as required under Rule 60(b). FED. R. CIV.
P. 60(c)(1).
Neither has Johnson established that extraordinary circumstances warrant
relief under Rule 60(b)(6). As stated previously, Johnson claims he discovered the
legislative history concerning Alabama Code § 13A-5-40(a)(17) in 2014. (Doc. 50
at 11). He argues that under 28 U.S.C. § 2244(d)(1)(D), the 1-year period of
limitation did not begin to run until 2014 when the factual predicate of the claim
presented was discovered and he is entitled to equitable tolling. (Id. at 1-2, 13). To
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be entitled to equitable tolling, Johnson must show that he pursued his rights
diligently, and some extraordinary circumstance stood in his way and prevented
timely filing. See Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017).
Even assuming, without deciding, that the 1-year period of limitation began when
Johnson discovered the legislature’s intent in 2014, he did not file the present motion
seeking relief from this court until 2020. Neither does Johnson allege he sought
permission in the Eleventh Circuit to bring a successive petition on this ground since
discovering it in 2014. See 28 U.S.C. § 2244(b)(3)(A). Thus, Johnson fails to
demonstrate that he has been pursuing his rights diligently and what extraordinary
circumstance stood in his way to prevent him from seeking relief sooner in order to
justify equitable tolling.
In addition, Johnson has not come forward with any new evidence previously
unavailable to him to support a claim of actual innocence. See McQuiggin v. Perkins,
569 U.S. 383, 386 (2013); Schlup v. Delo, 513 U.S. 298, 324 (1995).

At most,

Johnson argues he is legally innocent of capital murder. However, actual innocence
requires a showing of actual, factual innocence, rather than legal innocence. See San
Martin v. McNeil, 633 F.3d 1257, 1267-68 (11th Cir. 2011) (stating that a petitioner
must establish his factual innocence, rather than legal innocence, in order to show a
“fundamental miscarriage of justice” that requires the court to consider an untimely
§ 2254 petition).
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Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections thereto, the
court ADOPTS the magistrate judge’s report and ACCEPTS his recommendation.
Because Johnson has not sought relief within a reasonable time and has not
demonstrated extraordinary circumstances to warrant relief from judgment, the court
DENIES Johnson’s Rule 60(b) motion.
DONE and ORDERED on September 23, 2020.

_____________________________
L. Scott Coogler
United States District Judge
160704

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