NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0275n.06 No. 09-3530 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

MWANI KI

J OHNSON, Petitioner-Appellant,

v. STUART HUDSON, Warde n, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR T H E N O RT HERN DI STRI CT OF OH I O

BEF ORE: NORRI S, ROGERS , GRI FF I N, Circuit J udg es. ROGERS, Circuit J udg e. State prisoner Mwaniki J ohnson appea ls from the district court’s denial o f h i s R u le 60(b) motion for relief from judgme nt in his fede ral habea s proce eding s. This
court g rante d a cer

tificate of appea lability on the question of whether J ohnson was entitled to eq u itable tolling of the Antiterror ism and Effe ctive Death Penalty Act’s statute of limit at i o n s . Be cause J ohnson filed his petition within the time permitted under this circ uit’ s t h en-c ontrolling prec edent, a

g rant of e quitable tolling is war rante d. J ohnson’s case has a long proce dural history , beg inning with J ohnson’s shooting of Anthony King on November 14, 2002. On J anuar y 10, 2003, J ohnson was indicted on two char g es: one count of fe lonious assault in viol ation of Ohio Rev. Code § 2903.11 and one count of attempted murder under Ohio Rev. Code § 2923

. 0 2 , b o th counts with a firea rm specific ation and a repe at violent offe nder specific ation. At t ri al , the jury convicted J ohnson of attempted murder with the firea rmNo. 09-3530

Johnson v. H

udson specific ation. At the court’s order , the jury rec onvened to consider the assault char g e, and returne d

a g uilty verdic t. The tr i al court also found J ohnson to be a repe at violent offe nder based on his probation office r’s testimony that J o h n s o n h ad previously been convicted of felonious assault. J ohnson was sentenc ed to ten y ear s’ imprisonment at his first sentenc ing hear ing, but the trial court did not impose a sentenc e for the felonious assault conviction. At the sentenc e revie w hear ing, the trial court order ed t h at the orig inal sentenc e be modified and sentenc ed J ohnson to an additional eig ht y ear s in prison, resulting in a total sentenc e of eig hteen y ear s. I n his substantive habea s claims, J ohnson arg ues that this resente ncing was in violation of the double jeopa rdy clause

. J ohnson filed a timely motion for app ea l i n the Ohio state appellate court, which affirmed the t rial court’s judgme nt. The Ohio Supreme Court denied leave to appeal o n Aug ust 10, 2005. During the pendenc y of the direc t appea l proce eding s, J ohnson filed a timely application to reope n his direct appe al under

Ohio R. App. P. 26(B). The Ohio Court of Appea ls de nied the application
to reope n and J ohnson’s m o t i o n t o ce rtify a conflict. J ohnson appea led that decision to the Ohio Supreme Court, which a ffirme d the appe llate cour t’s decisions on Octobe r 26, 2005. J ohnson next turned to the fede ral courts, filing for a writ of habea s corpus in the Norther n District of Ohio on Dec ember 21, 2006. The court ref err ed the case to a mag istrate judge who

rec ommended that the district court deny J ohnson’s petition beca use it was not filed within the oney ear statute of l imitations provided b y t h e Antiterror ism and Effec tive Death Penalty Act of 1996 (AEDPA) , as outlined in 28 U.S.C. §2244(d). J ohnson argued that his petition was consistent with the rule articula ted in Abela v. Martin , 348 F.3d 164 (6 Cir. 2003), which tolled the one-y ear statute t h

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of limit ations provided in AEDPA during the ninety -day period in which the petitioner could appea l the s tate court’s decision t o the S upreme Court of t he United Sta t es . On November 30, 2007, the district court denied J ohnson’s habea s petition and dismiss ed t he case based on the holding in Lawrence v. Florida , 549 U.S. 327 (2007) , wh i ch wa s issued two months afte r J ohnson filed his petition and eff

ectively overr

uled Abela

. The Six th Circuit denied J ohnson’s application for a

cer tificate of appea lability (COA), citing the statute of limit ations bar outlined in the district court’s decision. The Supre me Court of the United States de nied ce rtiorar i in the case

. On Dec ember 29, 2008, J ohnson filed a Motion for Relief from J udg ment under Fe d. R. Civ. P. 60(b), arguing that the district court overlooke d the tolling rule in Abela when it first considere d his petition. The district c ourt acknow ledg ed that J ohnson’s argument had some merit, but denied the motion on the g rounds that the court could not “disturb a judgme n t b y the Six th Circuit.” J ohnson appea led from the de nial of his Rule 60(b) mot ion, and this court construe d his appea l as

an application for a cer

tificate of appea lability

. The COA was g rante d “on the limit ed question of 1 whether he was entitled to equitable toll ing.” An examination of J ohnson’s filing history reve als that J ohnson justifiably

relied on this cour

t’s holding in Abela and is entitled to equitable tolling.

Gene rally , a petitioner must first see k a COA fr om the district court before this court will 1 consider an appea l. This require ment has been extended to ha beas petitioners seeking relief under Rule 60(b). United St ates v. Hardin , 481 F.3d 924, 926 (6th Cir. 2 0 0 7 ). Howeve r, t his court has rec og nized its ability to g rant a COA in the first instance at it s o wn d i s cr etion, a power that was appar ently exercised in this case . United States v. Cruz , 108 F. App’x 346 , 348 (6th Cir. 2004) (citing United States v. Mitchell , 216 F.3d 1126 (D.C. Cir. 2000)). The Gover nment has not arg ued for r emand to the district cour t for a r uling on the COA

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The 2003 Abela decision rema ined the law of this circ uit until 2007, when the Supreme Court held “that the filing of a petition for cer tiorari befor e this court does not toll the statute of limit ations under §2244(d)(2) .” Lawrence , 549 U.S. at 337. This court has twice gr anted equitable t o lling to habea s petitioners in light of the unanticipated chang e of the law in Lawrence

. Hende rson v. Luoma , 302 F. App’x 359 (6th Cir

. 2 0 0 8 ); Sherwood v. Prelesnik , 579 F.3d 581 (6th Cir. 2009). L ike J ohnson, the petitioner in Hende rson filed a f eder al habe as petition outside of AEDPA’s one -y ear statute of limit ations, but within the 90-day period that the statute was tolled under this circ uit’s then-c ontrolling law . 302 F. App’ x 359 at 360-61. This cour t held that Hend er s o n lacke d notice that the limit ations period would not be tolled beca use Lawrence had not been decide d at the t ime he filed his petition.

. . . Even though Hende rson’s petition is untimely under the tolling rule announce d by Lawrence , his petition should be deeme d timely under the doctrine of equitable tolling beca use he justifiably

relied on the Six th Circuit’s binding pre cede nt. Id

. at 362. This cour t later applied simil ar rea soning in a published decision in Sherwood , emphasizing that “

Abela assure d that Sherwood would have an additional ni n et y d ay s afte r the Michig an Supreme Court’s denial of a n application for

leave to appea l in which to file a pe tition .

. . . Thus, althoug h Lawrence was decide d befor e Sherwo o d ’ s mo ti o n for rec onsideration was denied, Sherwood had alre ady relied on Abela .” 579 F.3d at 588-89. The rea so n i n g of Hende rson and Sherwood applies in J ohnson’s ca se. Although equitable tolling is used sparingly by fede ral courts, J ohnson’s case meets the standard for g ranting such relief

. See Graham-Hum

phreys v. Mem

phis Brooks Museum of

Art, Inc., 209 F.3d 552, 560 (6 Cir. 2000) (equitable tolling rar ely g rante d). J ohnson’s case war rants tolling t h

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when considered under the fac tors this court has outlined for evaluating whether equ i t able toll ing should a pply in a habea s case : “(1) the petitioner’s lack of notice of the filing require ment; ( 2) the petitioner’s lack of constructive knowledg e of the filing require ment; (3) diligenc e in pursuing one’s rig hts; (4) ab s en ce o f prejudice to the responde nt; and (5) the petitioner’s rea sonablene ss in

rema ining ignor ant of the leg al require ment for filing his claim.” Dunlap v. United States , 250 F.3d 1001, 1008-09 (c iting Andrews v. Orr , 851 F.2d 146, 151 ( 6th Cir. 1988)). Fa ctors one throug h three clea rly weig h in J ohnson’s favor

. First, J ohnson lacke d notice that h e wa s n o t enti tled to a ninety -day tolling period. Abela was decide d in 2003, and rema i n ed controlling until Fe bruar

y 20, 2007, when the Supreme Court decide d Lawrence

. J ohnson filed for a writ of habeas corpus in Dec ember of 2006, and therefor e had no actua l k n o wl edg e or fore sight that the rule of this cir cuit would chang e acc ording to the Lawrence decision. Second, J ohnson lacke d constructive knowledg e that he was not entitled to a ninety -day tolling period, as this circ uit’s understanding of the filing require ment did not chang e until afte r J ohnson filed his petition. I n fac t, this circuit’s precede nt clea rly stated t hat J ohnson was entitled to that period. Third, J ohnson has exercised diligenc e in the pursuit of all of his appea ls. J ohnson has g one throug h the state appellate
courts twice and the fede ral appea ls proce ss twice. At eac h step, he has timely filed his motions, at least as the de adlines we re understood in this circ uit, even when filing them pro se. Additionally , the Gover nment has shown no evide nce of delay with this particular pe tition. The prejudice fac tor could arguably weig h ag ainst J ohnson, as the g rant of equitable tolling

means that the Gover

nment will have to return for a third time to district court. Howeve r, not once
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in the entirety of the fede ral proce eding s in this case has a judge considere d the merits of J ohnson’s habea s petition, and a denial of equitable tolling would preve nt J ohnson from obtaining substantive ruling s, as timely filers are entitled under AEDPA. The Gover nment is not prejudice d by a decision requiring it to argue the merits of a case that was filed in acc ordanc e with then-c ontrolling prec edent and has be en dilige ntly

pursued e ver since

. Finally , J ohnson was rea s o n ab l e in his ignor ance of the Lawrence holding for the rea sons stated above. J ohnson was led into believing that he had one y ear plus ninety day s to file his petition, and he should not be held responsible for the chang e in law that occur red two months afte r the petition was filed. Ac cording ly , J ohnson is entitled to equitable tolling. The Gover

nment argues that beca

use this court had alre ady ruled on the statute of limit ations issue in J ohnson’s ca se, both this court and the district c ourt lack jurisdiction to consider the Rule 60(b) motion under the doctrine of res judicata. This argument fails, howeve r, as res judicata does
not bar Rule 60(b) motions. In re Jerom e Duncan, Inc. , 333 F. App’x. 14, 15 (6th Cir. 2009). “Eve n afte r a judgme nt h as become final and even afte r an appea l has been lost, Civil Rule 60(b) g ives losing parties ad d itional, narr ow g rounds for vaca ting the judgme nt.” GenCorp, Inc v. Olin Corporati on, 477 F.3d 368, 372 ( 6th Cir. 2007). T h e go v er nment further contends that J ohnson should not benef it from the rea soning of Sherwood beca

use, unlike Sherwood, J ohnson is not making his argument on appellate revie w of the district court’s denial of his habea s petition. Howeve r, habea s petitioners who have alre ady soug ht and obtained appellate revie w of their habea s denials are nonetheless entitled to rely on Rule 60(b)

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motions in seeking to co rr ec t “som e defe ct in the integ rity of the fede ral habea s proce eding s,” Gonzalez v. Crosby , 545 U.S. 524, 531 (2005), which is exactly what J ohnson seeks to d o i n this

case . I n spite of the law-of -the-c ase doctrine, a lower court may reope n an issue alre ady ruled upon by a controlling authority in limit ed circ umstances, incl u d i ng wher e that authority has taken “a subsequent contra

ry view of the law.” United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (interna l citations admitted); see also Mitchell v. Ree s , 261 F. App’x 825, 828 (6 t h Cir. 2008) (applying this exception in the habea s context). The distinction draw n by the Gover nment is n o t meaning less—J ohnson could have raised the Abela argument in his initial application to this court for a COA, as did Hende rson and Sherwood

. Howeve r, his failure to do so in his pro se petition does
not outweig h the equitable considera tions at work in this case . J ohnson was objectively justified in believing that he had timely filed his petition under then-c ontrolling pre cede nt. For the fore g oing rea sons, the di strict court’s denial of J ohnson’s Rule 60(b) motion is

reve rsed a

nd the ca se is rema

nded for proce eding s consistent with this ruli ng .

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