Johnson v. Hooks, et al

Filing 53

MEMORANDUM OPINION AND ORDER For the reasons within, Johnson's Motion for Relief from Judgment Pursuant to Rule 60(b) (Doc. 51) is DENIED. Because Johnson has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. Signed by Judge William M Acker, Jr on 8/17/15. (SAC )**Order placed in first class mail to pro se Petitioner.

FILED
2015 Aug-17 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AARON LAMONT JOHNSON,
Petitioner,
v.
WARDEN RALPH HOOKS, et al.,
Respondents.

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CIVIL ACTION NO.
2:03-CV-2913-WMA

MEMORANDUM OPINION AND ORDER
Before the court is the fourth post-judgment motion (Doc. 51)
of petitioner Aaron Lamont Johnson (“Johnson”) for relief from this
court’s June 21, 2004, dismissal of his petition for writ of habeas
corpus (Doc. 23). The motion was then assigned to Hon. Inge Johnson
who

dismissed

Johnson’s

two

previous

Rule

60(b)

motions1

as

unauthorized successive habeas petitions. Rule 60(b) motions that
assert “claims of error in the movant’s state conviction” should be
treated as successive petitions. Gonzalez v. Crosby, 545 U.S. 524,
538 (2005). And under 28 U.S.C. § 2244(b), a petitioner presenting
a successive petition must, inter alia, receive an order from the
appropriate court of appeals authorizing the district court to
consider the petition. Johnson’s previous 60(b) motions were denied
because they attacked “the substance of this court’s denial of his
habeas petition,” (Doc. 35 at 3), and because Johnson did not seek

1

Johnson also filed a Motion for Relief from Denial of
Access to Court on June 24, 2014, which this court denied on July
7, 2014.
1

and obtain authorization from the Eleventh Circuit to file his
motions.
When the court denied Johnson’s first Rule 60(b) motion, it
noted that “a Rule 60(b) motion is not a successive motion when it
‘attacks, not the substance of the federal court’s resolution of a
claim on the merits, but some defect in the integrity of the
federal habeas proceedings.’” (Doc. 35 at 2, n.2 (quoting Gonzalez,
545 U.S. at 532)). Running like molasses with this language,
Johnson now asserts in his current 60(b) motion, again without
seeking authorization from the Eleventh Circuit, that in August
2014 he discovered “defects of fraud in the habeas proceedings.”
(Doc. 51 at 3). According to Johnson, during his direct appeal, the
Alabama Court of Criminal Appeals discredited favorable eyewitness
testimony by reference to a third trial transcript, but no such
transcript

actually

existed.

Johnson

contends

that

“[t]his

erroneous factual finding constitute[s] the defect of fraud in the
integrity of the habeas proceedings” because that court’s reference
to the nonexistent transcript was fraudulent and because this court
adopted the fraudulent defect by deferring to the evaluation of the
evidence by the Court of Criminal Appeals. (Doc. 51 at 4).
Johnson’s latest effort fails. First, Johnson’s labeling of
the alleged defect as fraudulent is merely conclusory. No true
allegations

of

fraud

are

present.

Johnson

is

plainly,

and

admittedly, attacking an allegedly “erroneous factual finding” made
by the Court of Criminal Appeals. (Doc. 51 at 4). Johnson has
2

presented no basis for the court to conclude that any factual error
by the Court of Criminal Appeals was fraudulent. Instead, Johnson
continues to make the same argument that the Court of Criminal
Appeals erred because it should have accorded more weight to his
favorable witness testimony. Accordingly, the court finds that
Johnson’s Rule 60(b) motion, despite its conclusory allegations of
fraud, is, in fact, an unauthorized successive petition.
Even if the court were to treat Johnson’s motion as a Rule
60(b)

motion

properly

alleging

fraud,

Johnson

has

another

insurmountable problem. Claims of fraud may be brought under Rule
60(b)(3), but such motions must be made within a year of the
judgment being attacked. Fed. R. Civ. P. 60(c)(1). Johnson’s motion
comes eleven years after the denial of his habeas petition and nine
years after that decision was affirmed on appeal. While Johnson
claims to have only discovered the alleged fraudulent conduct in
August 2014, the strict 1-year deadline for claims of fraud under
Rule 60(b) does not permit an exception for his recent discovery.
For the reasons set forth above, Johnson’s Motion for Relief
from Judgment Pursuant to Rule 60(b) (Doc. 51) is DENIED. Because
Johnson has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability is DENIED.
DONE this 17th day of August, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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