                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0275n.06

                                            No. 09-3530                                FILED
                                                                                    Apr 28, 2011
                           UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


MWANIKI JOHNSON,                                          )
                                                          )
       Petitioner-Appellant,                              )      ON APPEAL FROM THE
                                                          )      UNITED STATES DISTRICT
               v.                                         )      COURT FOR THE NORTHERN
                                                          )      DISTRICT OF OHIO
STUART HUDSON, Warden,                                    )
                                                          )
       Respondent-Appellee.                               )
                                                          )



BEFORE: NORRIS, ROGERS, GRIFFIN, Circuit Judges.

       ROGERS, Circuit Judge. State prisoner Mwaniki Johnson appeals from the district court’s

denial of his Rule 60(b) motion for relief from judgment in his federal habeas proceedings. This

court granted a certificate of appealability on the question of whether Johnson was entitled to

equitable tolling of the Antiterrorism and Effective Death Penalty Act’s statute of limitations.

Because Johnson filed his petition within the time permitted under this circuit’s then-controlling

precedent, a grant of equitable tolling is warranted.

       Johnson’s case has a long procedural history, beginning with Johnson’s shooting of Anthony

King on November 14, 2002. On January 10, 2003, Johnson was indicted on two charges: one count

of felonious assault in violation of Ohio Rev. Code § 2903.11 and one count of attempted murder

under Ohio Rev. Code § 2923.02, both counts with a firearm specification and a repeat violent

offender specification. At trial, the jury convicted Johnson of attempted murder with the firearm
No. 09-3530
Johnson v. Hudson


specification. At the court’s order, the jury reconvened to consider the assault charge, and returned

a guilty verdict. The trial court also found Johnson to be a repeat violent offender based on his

probation officer’s testimony that Johnson had previously been convicted of felonious assault.

Johnson was sentenced to ten years’ imprisonment at his first sentencing hearing, but the trial court

did not impose a sentence for the felonious assault conviction. At the sentence review hearing, the

trial court ordered that the original sentence be modified and sentenced Johnson to an additional

eight years in prison, resulting in a total sentence of eighteen years. In his substantive habeas claims,

Johnson argues that this resentencing was in violation of the double jeopardy clause.

        Johnson filed a timely motion for appeal in the Ohio state appellate court, which affirmed

the trial court’s judgment. The Ohio Supreme Court denied leave to appeal on August 10, 2005.

During the pendency of the direct appeal proceedings, Johnson filed a timely application to reopen

his direct appeal under Ohio R. App. P. 26(B). The Ohio Court of Appeals denied the application

to reopen and Johnson’s motion to certify a conflict. Johnson appealed that decision to the Ohio

Supreme Court, which affirmed the appellate court’s decisions on October 26, 2005.

        Johnson next turned to the federal courts, filing for a writ of habeas corpus in the Northern

District of Ohio on December 21, 2006. The court referred the case to a magistrate judge who

recommended that the district court deny Johnson’s petition because it was not filed within the one-

year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), as outlined in 28 U.S.C. §2244(d). Johnson argued that his petition was consistent with

the rule articulated in Abela v. Martin, 348 F.3d 164 (6th Cir. 2003), which tolled the one-year statute


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of limitations provided in AEDPA during the ninety-day period in which the petitioner could appeal

the state court’s decision to the Supreme Court of the United States. On November 30, 2007, the

district court denied Johnson’s habeas petition and dismissed the case based on the holding in

Lawrence v. Florida, 549 U.S. 327 (2007), which was issued two months after Johnson filed his

petition and effectively overruled Abela. The Sixth Circuit denied Johnson’s application for a

certificate of appealability (COA), citing the statute of limitations bar outlined in the district court’s

decision. The Supreme Court of the United States denied certiorari in the case.

        On December 29, 2008, Johnson filed a Motion for Relief from Judgment under Fed. R. Civ.

P. 60(b), arguing that the district court overlooked the tolling rule in Abela when it first considered

his petition. The district court acknowledged that Johnson’s argument had some merit, but denied

the motion on the grounds that the court could not “disturb a judgment by the Sixth Circuit.”

Johnson appealed from the denial of his Rule 60(b) motion, and this court construed his appeal as

an application for a certificate of appealability.1 The COA was granted “on the limited question of

whether he was entitled to equitable tolling.” An examination of Johnson’s filing history reveals

that Johnson justifiably relied on this court’s holding in Abela and is entitled to equitable tolling.




        1
         Generally, a petitioner must first seek a COA from the district court before this court will
consider an appeal. This requirement has been extended to habeas petitioners seeking relief under
Rule 60(b). United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007). However, this court has
recognized its ability to grant a COA in the first instance at its own discretion, a power that was
apparently 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 Government has not argued
for remand to the district court for a ruling on the COA.

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        The 2003 Abela decision remained the law of this circuit until 2007, when the Supreme Court

held “that the filing of a petition for certiorari before this court does not toll the statute of limitations

under §2244(d)(2).” Lawrence, 549 U.S. at 337. This court has twice granted equitable tolling to

habeas petitioners in light of the unanticipated change of the law in Lawrence. Henderson v. Luoma,

302 F. App’x 359 (6th Cir. 2008); Sherwood v. Prelesnik, 579 F.3d 581 (6th Cir. 2009). Like

Johnson, the petitioner in Henderson filed a federal habeas petition outside of AEDPA’s one-year

statute of limitations, but within the 90-day period that the statute was tolled under this circuit’s

then-controlling law. 302 F. App’x 359 at 360-61. This court held that

        Henderson lacked notice that the limitations period would not be tolled because
        Lawrence had not been decided at the time he filed his petition. . . . Even though
        Henderson’s petition is untimely under the tolling rule announced by Lawrence, his
        petition should be deemed timely under the doctrine of equitable tolling because he
        justifiably relied on the Sixth Circuit’s binding precedent.

Id. at 362. This court later applied similar reasoning in a published decision in Sherwood,

emphasizing that “Abela assured that Sherwood would have an additional ninety days after the

Michigan Supreme Court’s denial of an application for leave to appeal in which to file a petition .

. . . Thus, although Lawrence was decided before Sherwood’s motion for reconsideration was denied,

Sherwood had already relied on Abela.” 579 F.3d at 588-89. The reasoning of Henderson and

Sherwood applies in Johnson’s case.

        Although equitable tolling is used sparingly by federal courts, Johnson’s case meets the

standard for granting such relief. See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,

209 F.3d 552, 560 (6th Cir. 2000) (equitable tolling rarely granted). Johnson’s case warrants tolling


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when considered under the factors this court has outlined for evaluating whether equitable tolling

should apply in a habeas case: “(1) the petitioner’s lack of notice of the filing requirement; (2) the

petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s

rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness in

remaining ignorant of the legal requirement for filing his claim.” Dunlap v. United States, 250 F.3d

1001, 1008-09 (citing Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)).

        Factors one through three clearly weigh in Johnson’s favor. First, Johnson lacked notice that

he was not entitled to a ninety-day tolling period. Abela was decided in 2003, and remained

controlling until February 20, 2007, when the Supreme Court decided Lawrence. Johnson filed for

a writ of habeas corpus in December of 2006, and therefore had no actual knowledge or foresight

that the rule of this circuit would change according to the Lawrence decision. Second, Johnson

lacked constructive knowledge that he was not entitled to a ninety-day tolling period, as this circuit’s

understanding of the filing requirement did not change until after Johnson filed his petition. In fact,

this circuit’s precedent clearly stated that Johnson was entitled to that period. Third, Johnson has

exercised diligence in the pursuit of all of his appeals. Johnson has gone through the state appellate

courts twice and the federal appeals process twice. At each step, he has timely filed his motions, at

least as the deadlines were understood in this circuit, even when filing them pro se. Additionally,

the Government has shown no evidence of delay with this particular petition.

        The prejudice factor could arguably weigh against Johnson, as the grant of equitable tolling

means that the Government will have to return for a third time to district court. However, not once


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in the entirety of the federal proceedings in this case has a judge considered the merits of Johnson’s

habeas petition, and a denial of equitable tolling would prevent Johnson from obtaining substantive

rulings, as timely filers are entitled under AEDPA. The Government is not prejudiced by a decision

requiring it to argue the merits of a case that was filed in accordance with then-controlling precedent

and has been diligently pursued ever since.

       Finally, Johnson was reasonable in his ignorance of the Lawrence holding for the reasons

stated above. Johnson was led into believing that he had one year plus ninety days to file his

petition, and he should not be held responsible for the change in law that occurred two months after

the petition was filed. Accordingly, Johnson is entitled to equitable tolling.

       The Government argues that because this court had already ruled on the statute of limitations

issue in Johnson’s case, both this court and the district court lack jurisdiction to consider the Rule

60(b) motion under the doctrine of res judicata. This argument fails, however, as res judicata does

not bar Rule 60(b) motions. In re Jerome Duncan, Inc., 333 F. App’x. 14, 15 (6th Cir. 2009). “Even

after a judgment has become final and even after an appeal has been lost, Civil Rule 60(b) gives

losing parties additional, narrow grounds for vacating the judgment.” GenCorp, Inc v. Olin

Corporation, 477 F.3d 368, 372 (6th Cir. 2007).

       The government further contends that Johnson should not benefit from the reasoning of

Sherwood because, unlike Sherwood, Johnson is not making his argument on appellate review of the

district court’s denial of his habeas petition. However, habeas petitioners who have already sought

and obtained appellate review of their habeas denials are nonetheless entitled to rely on Rule 60(b)


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motions in seeking to correct “some defect in the integrity of the federal habeas proceedings,”

Gonzalez v. Crosby, 545 U.S. 524, 531 (2005), which is exactly what Johnson seeks to do in this

case. In spite of the law-of-the-case doctrine, a lower court may reopen an issue already ruled upon

by a controlling authority in limited circumstances, including where that authority has taken “a

subsequent contrary view of the law.” United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)

(internal citations admitted); see also Mitchell v. Rees, 261 F. App’x 825, 828 (6th Cir. 2008)

(applying this exception in the habeas context). The distinction drawn by the Government is not

meaningless—Johnson could have raised the Abela argument in his initial application to this court

for a COA, as did Henderson and Sherwood. However, his failure to do so in his pro se petition does

not outweigh the equitable considerations at work in this case. Johnson was objectively justified in

believing that he had timely filed his petition under then-controlling precedent.

       For the foregoing reasons, the district court’s denial of Johnson’s Rule 60(b) motion is

reversed and the case is remanded for proceedings consistent with this ruling.




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