Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  November 21, 2014                                                                 Robert P. Young, Jr.,
                                                                                               Chief Justice

  147410 & (21)                                                                      Michael F. Cavanagh
                                                                                     Stephen J. Markman
                                                                                         Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                      David F. Viviano,
            Plaintiff-Appellee,                                                                     Justices

  v                                                       SC: 147410
                                                          COA: 311625
                                                          Wayne CC: 99-005393-FC
  JUSTLY ERNEST JOHNSON,
            Defendant-Appellant.

  _________________________________________/

         By order of June 18, 2014, the prosecuting attorney was directed to answer the
  application for leave to appeal the May 30, 2013 order of the Court of Appeals. On order
  of the Court, the answer having been received, the application for leave to appeal is again
  considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
  REMAND this case to the Court of Appeals for consideration, as on leave granted, of the
  following issues: (1) whether trial counsel rendered constitutionally ineffective
  assistance by failing to call Charmous Skinner, Jr., as a witness at trial; (2) whether the
  defendant is entitled to a new trial on grounds of newly discovered evidence in light of
  the proposed evidence related to Charmous Skinner, Jr., as an eyewitness to the
  homicide; (3) whether appellate counsel rendered constitutionally ineffective assistance
  by failing to raise these two issues on direct appeal; and (4) if the court determines that
  the defendant is not entitled to relief, but that the defendant in People v Kendrick Scott
  (Docket No. 148324) is entitled to relief, the Court of Appeals shall determine whether
  the defendant would have been entitled to relief but for MCR 6.508(D)(2), and, if so,
  whether, in the court’s judgment, the denial of such relief in that circumstance violates
  the defendant’s constitutional right to due process under either the federal or state
  constitutions.

          On remand, while retaining jurisdiction, the Court of Appeals shall remand this
  case to the Wayne Circuit Court to conduct an evidentiary hearing pursuant to People v
  Ginther, 390 Mich 436 (1973), to determine whether the defendant was deprived of his
  right to the effective assistance of counsel and whether the defendant is entitled to a new
  trial based on newly discovered evidence. At the conclusion of the hearing, the circuit
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court shall forward the record and its findings to the Court of Appeals, which shall then
resolve the issues presented by the defendant. We note that similar issues and evidence
are presented in People v Kendrick Scott (Docket No. 148324), which we remanded to
the Court of Appeals for consideration as on leave granted by order dated November 21,
2014. In all other respects, leave to appeal is DENIED, because the defendant has failed
to meet the burden of establishing entitlement to relief under MCR 6.508(D).

      MCCORMACK, J. not participating because of her prior involvement in this case as
counsel for a party.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         November 21, 2014
       h1118
                                                                             Clerk
