Johnson v. Mackie

Filing 13

ORDER denying 9 Motion to Alter or Amend the Judgment; granting 10 Motion to Attach Exhibits; granting 11 Motion to Attach Exhibits; granting in part and denying in part 12 Motion for Emergency Review. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH LESTER JOHNSON,
Petitioner,
v.

CASE NO. 15-14233
HONORABLE ARTHUR J. TARNOW

THOMAS MACKIE,
Respondent.
_________________________________/
ORDER
GRANTING PETITIONER’S MOTIONS TO ATTACH EXHIBITS
(ECF Nos. 10 and 11),
DENYING PETITIONER’S MOTION TO ALTER
OR AMEND THE JUDGMENT (ECF No. 9),
AND
GRANTING IN PART AND DENYING IN PART PETITIONER’S
MOTION FOR EMERGENCY REVIEW (ECF No. 12)
I. Introduction
On December 2, 2015, petitioner Joseph Lester Johnson commenced this action
by filing a pro se habeas corpus petition under 28 U.S.C. § 2254. See ECF No. 1.
The habeas petition challenged Petitioner’s 1985 Wayne County conviction for
second-degree murder. See Mich. Comp. Laws § 750.317.
Petitioner’s sole ground for relief in his habeas petition was that a key
prosecution witness in his case (Edith Gibson) committed perjury when she testified
against him at his criminal trial. Petitioner alleged that he learned of the perjury in
2013 when he obtained a copy of the transcript from his co-defendant’s trial and

discovered that Ms. Gibson testified at his co-defendant’s trial that the co-defendant
ordered Gibson to remove the deceased victim’s pants and empty his pockets.
Petitioner asserted that this testimony contradicted Ms. Gibson’s testimony at his trial
where she testified that Petitioner ordered her to remove the victim’s pants and empty
his pockets. Because the prosecutor’s theory was that Petitioner’s co-defendant shot
the victim, but that Petitioner aided and abetted his co-defendant, Petitioner claimed
that Ms. Gibson’s testimony at his co-defendant’s trial was new evidence of his
innocence.
On January 14, 2016, the Court summarily dismissed the habeas petition
because it was a second or successive petition to a habeas petition that Petitioner filed
in 19901 and because Petitioner had not received permission from the Court of
Appeals to file the petition. See ECF No. 3. Petitioner subsequently filed a “Motion
for Relation Back Amendment Pursuant to Rule 15(c).” See ECF No. 6. Petitioner
indicated in his motion that he wanted to have his current claims relate back in time to
1990, when he filed his first habeas petition. The Court denied Petitioner’s motion
because Petitioner’s 1990 habeas case was closed and there was no pending case to

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See Johnson v. Prelesnik, No. 90-71484 (E.D. Mich. May 29, 1990). The
first petition was dismissed on the basis that the claimed error was harmless.
Petitioner also filed a habeas corpus petition in 1995. The second petition
was dismissed as an abuse of the writ. See Johnson v. Pitcher, No. 95-76196 (E.D.
Mich. Feb. 25, 1997).
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which Petitioner’s arguments could relate back. See ECF No. 8. Currently pending
before the Court are Petitioner’s motion to alter or amend the judgment, Petitioner’s
motions to attach exhibits, and his motion for emergency review.
II. Analysis
A. The Motions to Attach Exhibits (ECF Nos. 10 and 11)
The Court begins its analysis with Petitioner’s motions to attach exhibits to his
motion to alter or amend the judgment. The exhibits appear to be: (1) a small portion
of the transcript of Edith Gibson’s testimony at Petitioner’s co-defendant’s trial; and
(2) an excerpt from Petitioner’s second habeas corpus petition. Petitioner alleges that
the exhibits will help the Court resolve the question of whether he should be
permitted to relate his arguments back to a previous habeas petition.
The Court cannot attach the exhibits to Petitioner’s motion to alter or amend
the judgment, but the exhibits have been filed as separate documents in this case, and
the Court will consider the exhibits when ruling on Petitioner’s motion to alter or
amend the judgment. The Court therefore grants Petitioner’s motions to attach
exhibits (ECF Nos. 10 and 11).
B. The Motion to Alter or Amend (ECF No. 9)
Petitioner appears to want the Court to alter or amend its order denying his
motion to relate his claims back to one of his previous habeas petitions. Petitioner
brings his motion under Federal Rule of Civil Procedure 59(e), which permits a party

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to move to alter or amend a judgment within twenty-eight days after entry of the
judgment. The Court entered its order denying Petitioner’s motion to relate back on
June 6, 2016, and Petitioner filed his motion to alter or amend the order on June 22,
2016. Thus, the motion to alter or amend the prior order is timely.
The purpose of a Rule 59(e) motion “is to allow the court to reevaluate the
basis for its decision.” Keyes v. Nat’l R. R. Passenger Corp., 766 F. Supp. 277, 280
(E.D. Pa. 1991). “A district 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 this District’s “palpable defect” standard in its Local Rules. Id.
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.
L.R. 7.1(h)(3) (E.D. Mich. July 1, 2013).
Petitioner has not shown that the Court committed a palpable defect or a clear
error of law when it denied his motion for relation back of his claims. He also has not

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produced any newly-discovered evidence or cited an intervening change in the law
since the Court denied his motion for relation back.
Although Petitioner does allege that he is the victim of a fundamental
miscarriage of justice and is actually innocent of second-degree murder, he is merely
rehashing a claim that he raised in his habeas petition and in his motion to relate back.
Furthermore, according to one of Petitioner’s exhibits, Ms. Gibson testified at
Petitioner’s co-defendant’s trial that both Petitioner and his co-defendant ordered her
to empty the victim’s pockets. Ms. Gibson also testified that both men took the drugs
and money which were in the victim’s pants pockets and that Petitioner suggested
shooting the victim a second time. See Mot. to Attach Exhibits, ECF No. 11, Pg ID
525-27.
The Court concludes that Petitioner has not established a credible claim of
actual innocence. Therefore, it is not necessary to alter or amend the Court’s previous
order to prevent manifest injustice. Accordingly, the motion to alter or amend the
judgment (ECF No. 9) is denied.
C. The Motion for Emergency Review (ECF No. 12)
In his fourth and final motion, Petitioner seeks to have the Court review his
case immediately and to release him on bond pending a decision on whether his claim
of false testimony relates back to his prior habeas petition. Petitioner’s motion is
granted in part and denied in part. The request for immediate review of this case is

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granted, but the request for release on bond is denied because Petitioner has not raised
a “substantial question,” and he has not demonstrated that some circumstance makes
his case “exceptional and deserving of special treatment in the interests of justice.”
Aronson v. May, 85 S. Ct. 3, 5 (1964).
III. Conclusion
For the reasons given above, the Court rules as follows:
• the motion to alter or amend the judgment (ECF No. 9) is denied;
• the motions to attach exhibits (ECF Nos. 10 and 11) are granted;
• the motion for emergency review (ECF No. 12) is granted in part and denied
in part. The request for immediate consideration of Petitioner’s case is granted, but
the request for release on bond is denied.

s/Arthur J. Tarnow
ARTHUR J. TARNOW
SENIOR UNITED STATES DISTRICT JUDGE
Dated: July 21, 2016

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