Johnson v. Bell

• Decision Date: 17 May 2010
• Docket Number: 06-6330.,No. 05-6925,05-6925
• Citation: 605 F.3d 333
• Parties: Donnie E. JOHNSON, Petitioner-Appellant,v.Ricky BELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

605 F.3d 333

Donnie E. JOHNSON, Petitioner-Appellant,v.Ricky BELL, Warden, Respondent-Appellee.

Nos. 05-6925; 06-6330.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 19, 2009.

Decided and Filed: May 17, 2010.

Rehearing and Rehearing En Banc Denied Sept. 10, 2010.^*

ARGUED: Paul R. Bottei, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Jennifer Lynn Smith, Office Of The Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Paul R. Bottei, Christopher M. Minton, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Alice B. Lustre, Michael E. Moore, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Before: BOGGS, NORRIS, and CLAY, Circuit Judges.

NORRIS, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 341-45), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

In 1985 petitioner Donnie E. Johnson was sentenced to death for the murder of his wife. Since that time he has initiated numerous legal proceedings in both state and federal court challenging his conviction. In 2003 we considered a petition for a writ of habeas corpus, 28 U.S.C. § 2254, and denied relief. Johnson v. Bell, 344 F.3d 567 (6th Cir.2003). Thereafter petitioner filed two motions for equitable relief in federal district court, which were denied. In this consolidated appeal, we review each of those decisions.

In case number 05-6925, petitioner's motion for equitable relief contended that the prosecution engaged in misconduct by not revealing to defense counsel that it had granted a key witness, Ronnie McCoy, a deal in exchange for his testimony. According to petitioner, by allowing McCoy to testify that he had not received special consideration, the prosecution knowingly offered perjured testimony at trial and perpetrated fraud on the district court during the subsequent habeas corpus proceedings by submitting affidavits from McCoy and the prosecutor denying the existence of a deal.

In case number 06-6330, petitioner's motion alleged that the prosecutor improperly vouched for McCoy during closing argument.

I.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, places restrictions upon individuals seeking to file second or successive habeas corpus applications: claims presented in a prior application must be dismissed; and those claims omitted from a previous application can be raised in a subsequent application only if there has been a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, or the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the claim itself, if proven, would establish by clear and convincing evidence that no reasonable juror would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). Moreover, before the district court may entertain a second application for a writ of habeas corpus, the petitioner must first seek an order from the appropriate court of appeals authorizing it. 28 U.S.C. § 2244(b)(3)(A).

Petitioner did not seek leave to file a successive application. Instead he filed the instant motions pursuant to Fed.R.Civ.P. 60(b) and the inherent equitable powers conferred on the federal courts by Article III of the Constitution. In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Court discussed the interplay between § 2244(b) of AEDPA and Rule 60(b), noting that “for purposes of § 2244(b) an ‘application’ for habeas relief is a filing that contains one or more ‘claims.’ ” Id. at 530, 125 S.Ct. 2641. And, such “claims” as contemplated by AEDPA represent “an asserted federal basis for relief from a state court's judgment of conviction.” Id. Such claims cannot be collaterally attacked through a Rule 60(b) motion. However, the rule continues to have limited viability in the habeas context:

In most cases, determining whether a Rule 60(b) motion advances one or more “claims” will be relatively simple. A motion that seeks to add a new ground for relief ... will of course qualify. A motion can also be said to bring a “claim” if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion 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.

Gonzalez, 545 U.S. at 531-32, 125 S.Ct. 2641 (footnotes omitted) (emphasis original); see also

Post v. Bradshaw, 422 F.3d 419, 424-25 (6th Cir.2005). The Court

glossed the final sentence of the passage just quoted in a footnote:

The term “on the merits” has multiple usages. We refer here to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.

Id. at 532 n. 4, 125 S.Ct. 2641 (citation omitted).

As mentioned, the motions for equitable relief under review cited two sources of authority: first, what petitioner terms the district court's “plenary inherent Article III equitable powers to revise or amend a judgment in the interest of justice”; second, Rule 60(b). The district court declined to base its authority upon Article III and instead recognized that Rule 60(b), which is inherently equitable in nature, empowers district courts to revise judgments when necessary to ensure their integrity. We endorse this approach. Rule 60(b)(6) provides that a district court may grant relief from judgment “for any other reason that justifies relief.” This provision confers upon the district court a broad equitable power to “do justice.” Particularly in light of the approach taken by Supreme Court in Gonzalez, Rule 60(b) represents the sole authority, short of a successive application approved by this court, under which a district court may entertain a challenge to a prior denial of habeas relief.

Before we turn to the substance of this appeal, we must attend to a jurisdictional issue. Just as it places limitations upon successive petitions, AEDPA restricts a petitioner's right to bring an appeal to this court. Before he may do so, he must first obtain a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c). This court has recently clarified that a COA is necessary not only to appeal the initial denial of a writ of habeas corpus, but also to appeal from the denial of a motion brought pursuant to Rule 60(b). United States v. Hardin, 481 F.3d 924, 926 (6th Cir.2007). In neither of the two appeals now before us did petitioner seek a COA. Rather than dismiss the consolidated appeal on that ground, we will construe his notices of appeal as applications for a COA.

II.

A. Case No. 05-6925

1. Claim as Raised in the Original Habeas Petition

In his 1997 petition for a writ of habeas corpus, Johnson raised the issue that he seeks to reinvigorate here: that the prosecution violated the “Sixth, Eighth, and Fourteenth Amendments by knowingly presenting false testimony at the guilt stage and withholding evidence that exculpated Mr. Johnson for Mrs. Johnson's murder.”

At trial, McCoy testified that he left petitioner and the victim alone for a few minutes on the night of the murder and, when he returned, he saw Mrs. Johnson's bleeding, dead body.¹ According to McCoy, “I got paranoid,” and asked petitioner why he had done it, to which petitioner replied, “It just happened.” McCoy then helped petitioner clean up the area, which included retrieving the victim's glasses and shoes, and placed them, along with the body, in a van. As related by the Tennessee Supreme Court, the pair eventually left the van in the parking lot of a shopping mall. On cross-examination at trial, McCoy testified that, when he was interviewed by defense counsel, he told him that he “knew nothing” of the death of Mrs. Johnson. He also asserted that he had not received any promises in exchange for his testimony. This latter statement occurred outside the presence of the jury.

In response to the habeas petition, the State submitted affidavits from prosecutor Kenneth Roach and McCoy. According to Roach, although he recognized that probable cause existed to charge McCoy with serious crimes related to his role in the murder, “I felt it unlikely that it could be proven that his participation was willing.” Therefore, he decided not to prosecute, a decision that “was unrelated to his testimony.” For his part, McCoy submitted an affidavit stating, “I was given no grant of immunity or made any promises regarding favorable treatment in exchange for my testimony.” Petitioner now contends that these affidavits were false and that the State perpetrated fraud on the district court by submitting them.

The district court denied habeas relief. It noted first that none of the claims related to prosecutorial misconduct were raised in state court. After a brief discussion of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a review of the alleged prosecutorial misconduct, the court found “that petitioner's claim that the prosecution suppressed evidence of a deal with Ronnie McCoy has been procedurally defaulted.” Rather than end there, the court turned to the merits-specifically to the affidavits submitted by...