Johnson v. Prelesnik

Filing 64

ORDER denying 54 Motion for emergency decision; denying 55 Motion for indicative ruling; granting in part and denying in part 56 Motion for review of information concerning Officer Stawiasz; denying 58 Motion to revise jurisdiction; granting 59 Motion to admit exhibits; granting 60 Motion to Amend or supplement; denying 61 Motion to renew bond request; denying 62 Motion for review of motion for bail. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH JOHNSON,
Petitioner,
Case No. 90-cv-71484
v.
Honorable John Corbett O’Meara
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]
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 narcoticsrelated 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.

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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 Federal Rule of Civil Procedure 62.1, which reads in relevant part
as follows:
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(a) Relief Pending Appeal. If a timely motion is made for relief that the
court lacks authority to grant because of an appeal that has been
docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of
appeals remands for that purpose or that the motion raises a
substantial issue.
Fed. R. Civ. P. 62.1(a).
Petitioner concedes that the Court had no jurisdiction to consider his motion to
alter or amend the order on his motion for relief from judgment while his appeal from the
Court’s prior decision was pending. Therefore, he asked the Court, pursuant to Rule
62.1(a)(3), to state either that it would grant his motion to alter or amend its ruling on his
motion for relief from judgment or that the motion raised a substantial issue.
After Petitioner filed his motion for an indicative ruling under Rule 62.1, the Sixth
Circuit Court of Appeals denied Petitioner’s application for a certificate of appealability.
See Johnson v. Prelesnik, No. 17-1432 (6th Cir. Oct. 20, 2017) (ECF No. 57). In light of
the Sixth Circuit’s order, there is no need for an indicative ruling from this Court as to
how it would rule on Petitioner’s motion to alter or amend.

Accordingly, the Court

denies Petitioner’s motion for an indicative ruling (ECF No. 55) and his motion for an
emergency decision on his motion for an indicative ruling (ECF No. 54).
B. The Motion Regarding Officer Stawiasz (ECF No. 56)
Petitioner states in a motion for emergency review that he has obtained
information from a newspaper article dated August 26, 2017, that police officer Donald
Stawiasz gave false testimony in Desmond Ricks’ criminal case. After the fabricated
evidence in Ricks’ case was exposed, Ricks was released from prison.

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Petitioner

alleges that Stawiasz also used false evidence to obtain his conviction and that
Stawiasz made promises to prosecution witnesses in exchange for their testimony.
The fact that Officer Stawiasz apparently gave false testimony about ballistic
evidence in Ricks’ case does not necessarily mean that he lied in Petitioner’s case
when he denied making promises to prosecution witnesses for their testimony. In fact,
an exhibit to Petitioner’s motion indicates that, when the trial prosecutor in Petitioner’s
case spoke with Stawiasz on June 5, 1985, Stawiasz specifically denied making any
promises to the two witnesses that he interviewed in connection with Petitioner’s case.
See Mot. for Emergency Review Concerning Officer Donald Stawiasz (ECF No. 56, Ex.
3, Page ID 314). Accordingly, the Court grants in part and denies in part Petitioner’s
motion to review Officer Stawiasz’ testimony. The Court grants the motion to the extent
that the Court has reviewed Petitioner’s exhibits about Officer Stawiasz. The Court
denies Petitioner’s motion to the extent that Petitioner seeks relief from his state
conviction on the basis of the new information about Stawiasz.
C. The Motion to “Revise” Jurisdiction (ECF No. 58)
In his next motion, Petitioner argues that, because the Sixth Circuit has
completed its review of his case, this Court now has jurisdiction to consider his motion
to alter or amend the Court’s ruling on his motion for relief from judgment. The Court
agrees, but for the following reasons, the Court declines to alter or amend its ruling on
Petitioner’s motion for relief from judgment.
In his motion for relief from judgment (ECF No. 41), Petitioner argued that the
assistant Michigan attorney general who responded to his habeas petition committed a
fraud on the Court by submitting false affidavits from the trial prosecutor and the officer

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in charge of Petitioner’s criminal case. In their affidavits, the prosecutor and the officer
deny knowing that Gibson had a criminal conviction at the time of Petitioner’s trial, and
they deny making any promises to Gibson in exchange for her testimony at Petitioner’s
trial. The Court denied Petitioner’s motion for relief from judgment after concluding that
Petitioner had failed to establish that the affidavits were false and that the assistant
attorney general in this case committed a fraud on the court.
Petitioner moved to alter or amend the Court’s ruling on his motion for relief from
judgment. He brought his motion under Federal Rule of Civil Procedure 59(e), which
permits a party to move to alter or amend a judgment within twenty-eight days after
entry of the judgment. Even assuming that Petitioner’s undated motion is timely, the
Court “may grant a Rule 59(e) motion to alter or amend judgment only if there is: ‘(1) a
clear error of law; (2) newly discovered evidence; (3) an intervening change in
controlling law; or (4) a need to prevent manifest injustice.’ ” Henderson v. Walled Lake
Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005)). This standard is consistent with the “palpable defect”
standard found in this District’s Local Rules, id., and under Local Rule 7.1, the Court
generally
will not grant motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or by
reasonable implication. The movant must not only demonstrate a palpable
defect by which the Court and the parties and other persons entitled to be
heard on the motion have been misled but also show that correcting the
defect will result in a different disposition of the case.
LR 7.1(h)(3) (E.D. Mich. July 1, 2013).
Petitioner’s motion to alter or amend the Court’s ruling on his motion for relief
from judgment presents the same issues that the Court, either expressly or by
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reasonable implication, has adjudicated. Petitioner also has not demonstrated that the
Court made a palpable error when it denied his motion for relief from judgment. He has
submitted new exhibits to support his claim that Gibson committed perjury when she
testified at his trial, but the exhibits are not persuasive.
One of the exhibits is an affidavit from Gerald Littleton who avers that he, too,
was arrested for the murder of the victim. Littleton goes on to say that in 1985 Gibson
told him that she lied about Petitioner and that the officer in charge of the case
threatened to lock her up if she did not testify against Petitioner. See Mot. to Alter or
Amend J. (ECF No. 48, Page ID 113).
“[M]otions based solely upon affidavits are disfavored because the affiants’
statements are obtained without the benefit of cross-examination and an opportunity to
make credibility determinations.”

Herrera v. Collins, 506 U.S. 390, 417 (1993).

Littleton’s affidavit is particularly suspect because it is based on hearsay.

Id.

Additionally, the motion is dated March 13, 2013, and Littleton offers no explanation for
why he waited twenty-eight years to come forward with information about Gibson.
Impeachment evidence, moreover, “is a step removed from evidence pertaining to the
crime itself.” Calderon v. Thompson, 523 U.S. 538, 563 (1998). “This sort of latter-day
evidence brought forward to impeach a prosecution witness will seldom, if ever, make a
clear and convincing showing that no reasonable juror would have believed the heart of
[the witness’s] account of petitioner’s actions.” Sawyer v. Whitley, 505 U.S. 333, 349
(1992).
The other exhibit that Petitioner wishes to bring to the Court’s attention is an
excerpt from a letter that someone employed by the Michigan State Police wrote to

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Petitioner on August 4, 1992. The letter states that Gibson’s conviction did not occur
until 1986 and that it could not have been on her computerized criminal history when
she testified against Petitioner in 1985. See Mot. to Alter or Amend J. (ECF No. 48,
Page ID 112). This information undermines, rather than supports, Petitioner’s claim that
the prosecution knew about Gibson’s criminal record at the time of Petitioner’s trial.
Even if the Court were to assume for the sake of argument that the prosecutor
withheld information about Gibson’s record, Judge Gilmore determined that any error in
failing to provide impeachment evidence about Gibson was harmless because there
was sufficient evidence to convict Petitioner without Gibson’s testimony.
Petitioner has failed to show that the Court made a palpable error when it denied
his motion for relief from judgment. Accordingly, the Court denies Petitioner’s motion to
alter or amend its ruling on the motion for relief from judgment.
D. The Motion to Admit Exhibits (ECF No. 59)
Next, Petitioner moves to admit two exhibits: (1) an excerpt of Gibson’s testimony
at Petitioner’s preliminary examination; and (2) Gibson’s statement to Sergeant E.
Harris on February 28, 1985. At the preliminary examination and in her statement to
Sergeant Harris, Gibson stated that Petitioner’s co-defendant told her to remove items
from the victim’s pocket. Petitioner contends that the exhibits prove Gibson gave false
testimony about his participation in the armed robbery.
The Court grants Petitioner’s motion to admit the exhibits and has considered the
exhibits when ruling on Petitioner’s motions. The exhibits, however, do not persuade
the Court to amend or alter its rulings in this case because Gibson implicated Petitioner

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in the crime when she testified at Petitioner’s preliminary examination and when she
provided a statement to the police.
E. The Motion to Amend or Supplement the Motion for Relief from Judgment
(ECF No. 60)
Petitioner seeks to amend or supplement his motion for relief from judgment with
the following items: Sergeant Elmer Harris’s affidavit; trial prosecutor John I. Kittel’s
affidavit; an excerpt of Gibson’s testimony at Petitioner’s trial; and the transcript of
Gibson’s sentencing in Recorder’s Court for the City of Detroit on May 9, 1986. The
Court has read the exhibits and grants Petitioner’s motion to admit or supplement his
motion for relief from judgment with the exhibits. The Court, nevertheless, points out
that it has already denied Petitioner’s motion for relief from judgment, and Petitioner’s
exhibits do not persuade the Court to alter or amend its ruling on the motion for relief
from judgment.
F. The Motions for Bond (ECF Nos. 61 and 62)
In his final two motions, Petitioner renews his request for release on bond.
Petitioner contends that his claim of fraud on the court is substantial and that his case
justifies special treatment in the interest of justice. Petitioner also asserts that he needs
to be released on bond to conduct further discovery in this case.
Petitioner appears to be under the mistaken impression that there has never
been an adjudication of his habeas petition and that the Court re-opened this case when
it ruled on his motion for relief from judgment. Judge Gilmore, however, adjudicated the
merits of Petitioner’s habeas petition, and this Court did not re-open this case when it
denied Petitioner’s motion for relief from judgment. Therefore, Petitioner’s motions for
bond pending a decision in this case are denied as moot.
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III. Conclusion and Denial of a Certificate of Appealability
For the reasons given above,
•the Court grants Petitioner’s motion to admit exhibits (ECF No. 59) and to
amend or supplement the motion for relief from judgment (ECF No. 60);
• The Court grants in part and denies in part Petitioner’s motion for review of
information concerning Officer Stawiasz (ECF No. 56);
• The Court denies Petitioner’s motions for an indicative ruling (ECF No. 55), for
an emergency decision on his motion for an indicative ruling (54), to alter or amend its
ruling on his motion for relief from judgment (ECF No. 58), and for bond (ECF Nos. 61
and 62).
The Court also declines to issue a certificate of appealability because reasonable
jurists could not disagree with the Court’s resolution of Petitioner’s motions or conclude
that the issues warrant encouragement to proceed further. Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).

Date: March 29, 2018

s/John Corbett O’Meara
United States District Judge

I hereby certify that on March 29, 2018, a copy of this order was served upon
counsel of record using the ECF system, and upon Petitioner using first-class U.S. mail.

s/William Barkholz
Case Manager

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