Johnson v. Bell
605 F.3d 333
6th Cir.
2010
Check Treatment
Docket

*1 trucks were not that the proposition use, off-highway designed for primarily use general road for the more instead

but which tipple face to getting coal driving function of the dual contemplates mine face and around the in and off-road roadways get traveling public on incapable of A truck tipple. coal coal would, in most roads public on traveling cases, coal from face to get unable to pur- no therefore serve and would tipple pose. JOHNSON, E. Petitioner-

Donnie

Appellant, Warden, Respondent- Ricky BELL, Appellee. 05-6925; 06-6330. Nos. Appeals, Court United States Sixth Circuit. Nov. 2009. Argued: May Filed: Decided and *2 Bottei,

ARGUED: Paul R. Federal Pub- Office, Nashville, Tennessee, lic Defender’s Appellant. Smith, for Lynn Jennifer Of- General, fice Of The Attorney Tennessee Nashville, Tennessee, Appellee. for ON Bottei, BRIEF: Paul R. Christopher M. Minton, Office, Federal Public Defender’s Nashville, Tennessee, for Appellant. Alice Lustre, Moore, B. Michael E. Office of the Attorney General, Nashville, Tennessee Tennessee, Appellee. for BOGGS, NORRIS, CLAY, Before: Circuit Judges.
NORRIS, J., opinion delivered the court, BOGGS, J., joined. CLAY, which 341-45), J. (pp. separate delivered a dissenting opinion.

OPINION NORRIS, ALAN E. Judge. Circuit In Donnie E. Johnson was sentenced to death for the murder of his wife. Since that time he has initiated legal numerous proceedings in both state and federal court challenging his convic- tion. 2003 we petition considered a a writ corpus, § of habeas 28 U.S.C. Bell, and denied relief. Johnson v. (6th Cir.2003). F.3d peti- Thereafter tioner filed equitable two motions for relief court, federal district which were de- nied. appeal, consolidated we re-

view each of those decisions. appeals authorizing appropriate court number

In case 2244(b)(3)(A). it. 28 contended that U.S.C. equitable relief engaged misconduct did not seek leave to file counsel it had revealing to defense not application. Instead he filed successive *3 witness, McCoy, Ronnie a key a granted pursuant motions to Fed. the instant testimony. Ac- exchange for deal 60(b) equitable R.Civ.P. inherent allowing McCoy by cording petitioner, to by courts powers conferred on federal special not received testify that to Article III of the Constitution. In Gonza- consideration, knowingly 2641, 125 S.Ct. Crosby, lez 545 U.S. testimony at trial and perjured offered (2005), dis- 162 L.Ed.2d 480 the Court fraud on the district court perpetrated 2244(b) § interplay cussed the between subsequent corpus pro- habeas during 60(b), AEDPA “for noting and Rule affidavits from by submitting ceedings 2244(b) § an purposes ‘application’ for denying or filing habeas relief is a contains one ” of a deal. existence at more ‘claims.’ Id. 125 S.Ct. 2641. And, contemplated by such “claims” 06-6330, petitioner’s case number AEDPA “an ba- represent asserted federal alleged prosecutor improp- that the motion for a sis relief from state court’s closing erly vouched of conviction.” Id. Such claims cannot be argument. 60(b) through a collaterally attacked Rule However, motion. the rule continues to I. viability in have limited the habeas con- text: Effective Death The Antiterrorism and cases, determining whether a most (“AEDPA”), Penalty Act of 1996 Pub.L. 60(b) motion one or more advances 104-132, 1214, places re- Stat. No. relatively simple. “claims” A will seeking to file upon strictions individuals motion to add ground that seeks a new corpus appli- or successive habeas second qualify. ... will of A relief course presented prior in a appli- claims cations: bring motion can also be said to dismissed; must be those cation “claim” if it attacks the court’s federal application previous from a claims omitted previous on the resolution claim application in a subsequent raised can be merits, alleging the court since new rule of only if there been a con- denying erred on the habeas relief law made retroactive cases stitutional effectively indistinguishable merits by the on collateral review is, that the under alleging movant Court, predicate or the factual for the provisions of the stat- substantive pre- could not discovered claim have been utes, habeas That is entitled to relief. through viously the exercise due dili- case, however, not the when a Rule itself, proven, if gence and the claim attacks, not substance of convincing clear and would establish federal court’s resolution of a claim on juror that no would reasonable merits, integ- but some defect in the petitioner guilty have found rity proceedings. of the federal habeas underlying offense. U.S.C. Gonzalez, 2244(b)(2). Moreover, before the dis- omitted) (footnotes origi- may (emphasis applica- trict court entertain second Bradshaw, nal); see Post v. corpus, peti- a writ of habeas also tion for (6th Cir.2005). The Court must first an order from the 424-25 tioner seek glossed the final passage sentence of the entertain a challenge prior to a denial of just quoted in a footnote: relief. multiple The term “on the merits” has Before we turn to the substance usages. We refer here to a determina- appeal, juris must attend to a tion that there exist or do not exist dictional issue. Just as it places limita grounds entitling to habeas tions petitions, successive AEDPA 2254(a) corpus §§ relief under 28 U.S.C. restricts a right bring (d). a movant When asserts one of so, this court. Before he do (or grounds those that a previ- asserts he must first obtain a certificate of appeal- ous ruling regarding one of those *4 (“COA”) ability pursuant to 28 U.S.C. error) grounds inwas he is a making 2253(c). This court has recently clari corpus claim. He doing is not so fied that a is necessary only COA not merely when he that a previous asserts appeal the initial denial of a writ of habeas ruling which precluded a merits deter- corpus, but appeal also to from the denial mination was in example, error —for a brought pursuant motion to Rule denial for such reasons as failure to 60(b). Hardin, United States v. exhaust, procedural default, or statute- (6th Cir.2007). 924, 926 In neither of the of-limitations bar. appeals two now before us petitioner did (citation

Id. at 532 n. 125 S.Ct. 2641 seek a COA. Rather than dismiss the con omitted). appeal solidated on that ground, will mentioned, As the motions for construe his applica notices of equitable relief under review cited two tions for a COA. first, sources of authority: petitioner what terms the district “plenary court’s inherent II. III equitable

Article powers to revise or A. Case No. 05-6925 amend a jus the interest of tice”; 60(b). second, Rule The district 1. Claim as Raised in the Original court declined to authority base its upon Habeas Petition Article III recognized and instead petition his 1997 for a writ of habeas 60(b), Rule which inherently equitable in corpus, Johnson raised the issue that he nature, empowers district courts to revise seeks to reinvigorate here: that the judgments when necessary to ensure their “Sixth, cution violated the Eighth, and integrity. We endorse approach. Fourteenth by Amendments knowingly 60(b)(6) Rule provides that a district court presenting false testimony at guilt may grant relief from judgment “for stage and withholding evidence that excul- other justifies reason that relief.” This pated Mr. Johnson for Mrs. Johnson’s provision confers the district court a murder.” equitable power broad justice.” to “do Particularly trial, in light of At approach taken testified that he left by Gonzalez, 60(b) Supreme Court in petitioner and the victim alone for a few represents authority, the sole short a night and, minutes on the of the murder application successive approved by returned, this when he he saw Mrs. Johnson’s court, under which a district may court bleeding, body.1 dead According to Johnson, 1. Readers who desire a (Tenn. detailed factual reci- 743 S.W.2d 155-57 opinion tation refer to the 1988). Tennes- Supreme see appeal. Court on direct State v. there, court turned to the merits— peti- asked “I and McCoy, got paranoid,” by affidavits submitted it, peti- specifically which had done why he tioner concluding, just happened.” “It Roach replied, tioner —before area, ambiguous bits of evidence up clean various helped petitioner “[t]he then by victim’s are sufficient retrieving put forward not included which them, shoes, credibility of the placed along to undermine the unam- glasses every individual biguous As related sworn denials body, in van. Court, knowledge pair contemporaneous personal even- with Tennessee parking concerning in the lot of a the matter.” tually the van left mall. On cross-examination shopping The Claim Revived as Rule that,

trial, he was McCoy testified when Motion counsel, he told by defense interviewed nothing” of the death him that he “knew petitioner filed On October that he He also asserted Mrs. Johnson. relief, equitable the denial of any promises exchange had not received us as case number 05-6925. which is before testimony. This latter statement for his he contended that Specifically, “[r]elief *5 jury. of the presence outside the occurred judgment given the in- from warranted proof that this tervening legal events and petition, In to the habeas response by tainted Court’s was [habeas] affidavits from State submitted fraud, misconduct, misrepresenta- McCoy. According to Kenneth Roach and and/or Among “intervening legal tion.” Roach, recognized proba- although he petitioner alluded was the events” to which McCoy with charge existed to ble cause decision in Banks v. Supreme Court’s in the related to his role serious crimes 1256, Dretke, 668, 124 S.Ct. 157 540 U.S. murder, could be unlikely “I felt it it (2004). provided 1166 Banks L.Ed.2d willing.” participation that his proven prosecutors sig- or conceal police Therefore, “[w]hen a prosecute, not to he decided impeaching or materi- exculpatory nificant that “was unrelated to his testi- decision ordinarily in it is possession, al the State’s McCoy his submitted mony.” part, For to set the record incumbent on State given grant “I was no stating, affidavit Banks, 675-76, at 124 540 U.S. straight.” any promises regarding or made immunity his 1256. Petitioner characterized S.Ct. exchange my in favorable treatment “virtually to the circum- claim as identical now contends that testimony.” Petitioner involves Banks.” stances and that these affidavits were false fraud on the district perpetrated State Banks, that a recognized the Court by submitting them. court “cause” and must establish petitioner develop “prejudice” for his failure habeas relief. The district court denied Id. proceedings. state-court of the claims relat- facts It noted first that none cause, 690-91, To show raised at 124 S.Ct. 1256. misconduct were prosecutorial ed to with evi- a must come forward petitioner a discussion of in state court. After brief 83, material suppressed that the State U.S. 83 S.Ct. dence Brady Maryland, v. at (1963), a evidence. Id. S.Ct. review 10 L.Ed.2d misconduct, prejudice, the withheld To show alleged prosecutorial that it “could reason- claim must have been such “that petitioner’s the court found put the whole case such ably be taken to suppressed evidence confi- light as to undermine been a different Ronnie deal with 698, 124 Id. at S.Ct. dence in the verdict.” Rather than end proeedurally defaulted.” (quoting Kyles Whitley, lief. it Instead turned to the substantive allegations 131 L.Ed.2d 490 “provide a means of further (internal (1995)) omitted). quotation marks distinguishing Petitioner’s case affirming general Banks while this Court’s petitioner’s district court denied conviction that claim remains devoid motion. It characterized the claim as in- It merit.” summarized the facts relied volving improperly combination of with- upon by petitioner as follows: Brady held material and fraud on the supplements his motion for Turning court. first to conten- Wayne relief with the affidavit[2] tion that he was entitled to relief Morrow, McCoy’s probation Ronnie offi- Banks, the district court noted: “Unlike cer, who, apparently response to Banks, Petitioner has McCoy’s disclaiming knowledge affidavit failed to exhaust his to this remedies as why as to presentence report[3] his 1988 Banks, claim in state courts.” granted states that he was immunity in Court reached cause and prejudice after exchange for testimony against his Peti- concluding first that petitioner had ex- tioner, presentence insists that Banks, re- hausted his state-court remedies. port is an accurate reflection of what 540 U.S. at 124 S.Ct. 1256. The dis- stated that time. Petitioner interpreted trict court Banks as follows: explain delay does not in submitting proposition Banks stands for the that a October, 2004, this affidavit than more petitioner may procedur- habeas avoid years five after the affidavit was al bar in proceedings federal habeas proceedings, entered nor does respect to claims which were al- he allege that it would have impos- been leged in *6 fully state court but were not sible for him procure the affidavit developed due to the conduct of the prior the proceedings. habeas state. Banks does not excuse a habeas Further, ... the merely pres- affidavit petitioner from procedural with bar party’s contrasting ents one recollection respect to wholly claims he has failed to of an interview which occurred more courts, in allege even the state but sub- years than seventeen ago.... The Mor- sequently decided go to make a at in the row ... hardly affidavit the compel- federal courts on the basis of evidence ling evidence of an undisclosed deal that to him prior pro- available to state-court Banks, Supreme Court dealt inwith ceedings. Accordingly, because Peti- wherein the petitioner tioner habeas offered failed to exhaust his state-court remedies, persons he affidavits of the actual has not demonstrated error whose prior participation this Court’s in the finding procedur- state’s case claim, against al default suppressed by as to this and Banks was he is not throughout entitled to relief state on the the state-court pro- ceedings. basis of the opinion Court’s Banks. respect court, With to fraud on the The district court did not stop after district court any declined find that finding procedural default barred re- collusion occurred between the Although 2. presentence district court referred to it report part, as 3. The stated in "De- affidavit, question an fendant was on work release in document in 1984 when he became involved in a murder case. styled He stated signed by a "declaration" and was granted immunity turning that he was for 7, September Morrow on state's evidence.”

339 Merch, Inc., 454 to the affidavits Sound McCoy respect Cir.2008)). not so. He has done event, ... was not a and, “any fraud any machinery’ ‘judicial at the fraud directed recognized, As the district court integrity compromise sufficient McCoy while there is some evidence this Court.” received favorable treatment based testimony, it far short of defini falls discussed, court will already As tively establishing that a deal with the from the denial of appeal entertain an not did, fact, occur. With the 60(b) pro in an AEDPA a Rule exception presentence report pre first obtains a ceeding unless pared years testimony four after his Hardin, A 481 F.3d at 926. COA COA. signed probation the declaration officer has made “only applicant if the may issue years affirming later Morrow some sixteen showing of the denial of a substantial granted “that he was the statement U.S.C. right,” constitutional immunity turning for state’s evidence” 2253(c)(2), the United States Su which McCoy, uniformly came from construed to mean that Court has preme refutes existence of a deal. so that reasonable applicant an must show testified at trial and he confirmed that petition that the could jurists could debate testimony nearly a decade later a sworn differently or that the have been resolved affidavit, prosecutor. As did the further review. raised deserved claims out, trial points petition State counsel Cockrell, Miller-El Crow, er, Jeff submitted an affidavit dur (2003). L.Ed.2d 931 S.Ct. proceedings, initial in which ing the petitioner to Rather than remand to enable asserted, “The it clear that State made COA, will con for a application file Ronnie prosecute it would not notice of as such. Because strue his my any involvement the homicide. To appropriate motion is an “[a] part was not knowledge, this decision forward a claim for fraud bring vehicle to McCoy.” with Ronnie Defense deal Anderson, court,” Carter v. on the it asked about counsel nonetheless (6th Cir.2009), peti F.3d *7 McCoy confirmed what counsel at trial and of evidence produced has a modicum tioner by prosecution. the been told claim, grant appli his support of this sum, not come forward In cation for a COA. that convincing and evidence the with clear intentionally false prosecution presented consists of Fraud on the court court, prerequi- to district “1) material the of an officer of part conduct: on the on the court to a viable fraud 2) site establish court; judicial is directed to the Demjanjuk, 10 F.3d at 348. We 3) claim. itself; false, intentionally machinery of the dis- therefore affirm the truth, willfully to the or is reckless blind 60(b) 4) denying court Rule trict truth; positive is a disregard of the in appeal 05-6925. or a concealment when one is averment 5) disclose; duty deceives under B. Case No. 06-6330 (cit Carter, at 1011 the court.” 585 F.3d petitioner filed a second Petrovsky, In June ing Demjanjuk v. relief, Cir.1993)). equitable the denial of the motion for Petitioner has subject appeal. which is the this proving existence of fraud on burden of motion, that the dis- petitioner contended convincing evidence. by court clear and prosecu- it denied a trict court erred when (citing Info-Hold, Inc. v. Id. at 1011-12 upon torial misconduct claim raised his habe- ed the evidence in the record con- He asked that the district petition. cerning credibility and his its denial of a COA on that response court revisit was made to attacks intervening claim because an decision from by appellant the witness counsel for court, Hodge Hurley, 426 F.3d 368 argument. form closing The of the (6th Cir.2005), “squarely rejected very argument was the nature of a sum- grounds previ- on which district [the court] mary jurors in the ously denied habeas relief and COA.” personal opinion record rather than concerning matters out- argument that forms the basis of addition, side the record. the trial petitioner’s prosecutorial claim misconduct judge clearly charged jurors that includes these comments made statements counsel were not to be closing argument: considered as evidence. We find no get For Ronnie up here and merit to this issue. in, just he all things and make fit these incredible, really just it would be- Johnson, 743 S.W.2d you, my impression cause he—I’ll tell The district court denied this claim him I was this. believe he was truthful. when it first considered the peti- got I believe he on the stand and bared tion. It concluded the decision of the all. I don’t believe he was most Supreme Tennessee Court was “neither brilliant individual in the world. I be- to, contrary nor an applica- unreasonable type lieve he was the anof individual of, clearly tion established federal law.” by that could have been led someone Assuming prosecutor’s remarks like Donnie Johnson. I don’t think he ill-advised, have been the district they paint as bad as want court noted that those remarks must “so him.... I you got submit to on the infect trial with unfairness as to make you stand and bared all. Told the truth. resulting conviction a denial of due any I don’t know of motive that he process.” would have to lie. rejected The district court this claim for object Defense counsel did not to these a second time it peti- when was raised in Despite objec- comments. lack of an tioner’s equitable second motion for relief. tion, this issue was raised to the Tennessee As it did denying when the motion for appeal Court on direct it equitable relief in number ruled as follows: authority the district court based its on It is insisted counsel that the trial rather than on “inherent court erred in permitting prosecut- *8 equitable power” conferred Article III ing attorney express to personal his of the Federal Constitution. opinion concerning credibility the McCoy. witness Ronnie This matter order, In its the district court did not objected was not to at pur- the time or discuss the petitioner’s prosecu- merits of sued in the motion for new trial. Rather, torial misconduct claim. it noted is, course,

It improper simply for an attor- that this “[b]oth Court and the ney express personal opin- to his or her previously Sixth Circuit have denied Peti- ion in the course of final prosecutorial summation. tioner a COA on his miscon- Hicks, Thus, See State v. 618 510 duct claim.” “it S.W.2d is clear that Peti- (Tenn.Crim.App.1981). In present request tioner’s for relief from judgment case, however, argument concentrat- the form of a equivalent COA is the

341 In petition deprivations. and stitutional Johnson v. or successive habeas second Bell, Cir.2003), comply to 344 F.3d 567 the ma- failing must be dismissed jority an opportunity denied Petitioner to requirements of 28 gatekeeping hearing have a on whether his trial coun- § 2244.” U.S.C. performance constitutionally sel’s defi- companion appeal, As we did in failing properly investigate cient to miti- notice of we construe gating penalty phase circumstances application as an case number 06-6330 time, trial. As the dissent noted at that application That is denied. a COA. Court, although “The record before the petitioner attacking is needing development, further factual pro- pre court’s substance the federal “[the of] vides clear indication that Petitioner’s trial claim on the merits. vious resolution of [the] responsibility counsel failed in their in- Gonzalez, at vestigate present mitigating evidence above, claim has 2641. As recounted penalty phase Petitioner’s trial. Con- To already litigated been and resolved. conclusion, trary majority’s it cannot argue seeks to the extent determined, present based Hodge represents “a new rule of con record, proper representation whether 2244(b)(2), law,” § stitutional U.S.C. penalty phase Petitioner at the trial would obtain leave from this court to must first have resulted in a different outcome.” Id. application. file a successive U.S.C. J., case, (Clay, dissenting). at 578 In that 2244(b)(3)(A). Ap done He has not so. an evidentiary Petitioner was entitled to number 06-6330 is dismissed. peal hearing on his ineffective assistance of claim, just counsel as he is on his claim of III. fraud on the court in this case.1 number a certificate of case judg- appealability is GRANTED The district court the instant case AFFIRMED. ment of the district court is evidentiary should have held an on hearing pur- Case number 06-6330 is DISMISSED whether state committed fraud on the § 2244. suant to 28 U.S.C. in the initial proceedings. court majority rejects allega- Petitioner’s CLAY, Judge, dissenting. Circuit tions based on its assertion majority has failed to come forward with “clear and This is the second time convincing” to have a evidence of fraud on the opportunity denied Petitioner the majority’s allegations very Notwithstanding on serious con- court.2 hearing clearly principle only potential violation of statements run afoul of the 1. Not is there Johnson, (see patently improper for a right ”[i]t counsel Petitioner’s J., credibility of a wit- (Clay, dissenting)) poten ... to comment on and a F.3d at 575 Hurley, Hodge withholding ness.” F.3d Brady violation based on the tial (6th Cir.2005). evidence, Despite prosecutorial prosecu Petitioner's claim of but case, evident in this I will not misconduct should also succeed on the torial misconduct claim seems address that because Petitioner giving prosecutor’s statements merits. The unlikely prevail proce- on the claim for the prosecutorial misconduct claim rise to the *9 majority opin- by the dural reasons set forth clearly violated Peti were inexcusable and ion. rights. prosecutor process due The tioner's improperly the trial that he vouched procedural prerequisite for of the McCoy “was truthful. I believe he 2. The issue believed appealability granting of a certificate of in got all” and further on the stand bared regards is in some flux. you got he to Rule 60 motions that “I submit to that on stand Hardin, 481 F.3d you the In United States v. and bared all. Told truth.” These contentions, undoubtedly possibility might Petitioner has and the that he have been murder, which should in questions raised sufficient involved her his work release fact, evidentiary hearing McCoy him to an on entitle status was not revoked. if This is so because Petitioner paroled only issue. two months later. While testimony McCoy was convicted based false parole, on took the witness stand product of which was the collusion between partic- and testified under oath about his prosecutor prosecutor’s princi- and the ipation helping in up to clean the crime witness, pal testimony then the false would dispose body scene and mur- of the “judicial at the constitute fraud directed victim. if der Even one takes into account the court sufficient to com- machinery” of McCoy that possibility arguably could promise integrity. the court’s See Dem- coerced, it have been is nonetheless incred- janjuk Petrovsky, 10 F.3d give ible to contend that a witness would Cir.1993) that (noting fraud on the court is incriminating testimony such with no as- perpetrated by a “fraud officers of the immunity prosecution. surance of from As judicial machinery court so cannot the Tennessee Court found perform in the impartial usual manner its rejecting appeal: Petitioner’s “In all adjudging presented task of cases that are events, however, McCoy] [Petitioner adjudication”). collaborated, otherwise, willingly or transporting body of Mrs. Johnson surrounding The circumstances Ronnie her 1981 Ford van from the sales office to McCoy’s testimony initial at Petitioner’s a shopping away. They center a few miles strongly suggest McCoy trial placed also inside van spec her broken prosecution made some sort of deal to tacles, shoes, her her coat and some ear McCoy protect incriminating himself. rings dislodged which had become her murder, McCoy At the time of the was on struggle They parked for breath. the van work release from incarceration on a bur- edge on the a large shopping of center and glary charge. McCoy initially denied left it there.” Later the court acknowl knowing anything about the murder of edged McCoy may have been an ac Connie Johnson. Three weeks after the Johnson, complice. State v. murder, 743 S.W.2d completely changed story his (Tenn.1987). 154, 156-57 and came to implicate forward Petitioner. McCoy proceeded to tell police then —-and Notwithstanding the risk took in

testify under oath—that he discovered providing testimony, this sworn body, Connie helped Johnson’s cutor and both assert in affidavits scene, clean the crime and then disposed of submitted to the district court that body parking lot. He decided to step any took this without promises deal or forward, words, come in his because he did immunity. acknowl- not “need more time.” edged McCoy’stestimony “would have

Despite McCoy’s acknowledgment provided sufficient probable cause to ob- disposing role in body, Connie Johnson’s tain an improper disposal indictment for (6th Cir.2007), Court, postdates appeal we found that a Petitioner’s to this appealability "must obtain a certificate of be thereby possibly permitting us to excuse the fore his of the denial of his Rule appealabili- failure to first seek a certificate of Spark motion can be heard." In Kincade v. ty majority in the district court. Since the man, (6th Cir.1997), the instant case addressed the issue on the Court held that "district courts must be the merits, issue, necessary it not to resolve this ap initial decision-maker” in a certificate of and this dissent will likewise reach the merits. However, pealability determination. Hardin *10 accessory original proceedings, after the Petitioner ob- possibly body, Morrow, Wayne further prosecutor murder.” The tained a declaration from fact to asserted, however, that he “felt it was probation prepared the officer who the proven it be that unlikely declaration, that could presentence report. In the the [McCoy’s] participation murder] [in penalty perjury Morrow swears under (J.A. 186-87). The state’s willing.” was McCoy. that statement came from the leverage that it had no position is official Therefore, come forward suggesting McCoy, thereby impliedly over testimony person with the sworn of a with McCoy came forward and testified that no incentive to lie which states in a murder participation under oath to his McCoy previously claimed he received prosecutor the no assurances from immunity testifying against Petitioner. Furthermore, any immunity. future about majori- court—and now the district challenge been a for the while it have ty this evidence based on affi- —dismisses McCoy’s participation prove to prosecutor provided by prosecutor, McCoy, davits murder, it have been in the actual would and Petitioner’s trial counsel. The affida- prove that difficult for the state to equally vit from trial counsel Petitioner’s does not the crime without Petitioner committed prosecution’s argument; buttress the Therefore, prose- McCoy’s testimony. emphasizes affidavit that the “state made where it needed position was cution prosecute McCoy. clear” that it would not testimony gain a conviction McCoy’s to The affidavit does not make clear what brutal murder of against Petitioner was the for that or basis assertion how Nonetheless, his wife. the state asserts admitting could risk involvement participation it to obtain full that was able guarantee a murder without some that the with a McCoy, possible accomplice from prosecution position. would be true to its any him history, offering criminal without Furthermore, trial Petitioner’s counsel’s least, very prosecution’s At the deal. knowledge lack of about a deal would version of events strains creduli- proposed hardly surprising. If there were a deal however, ty; submission prosecutor attempting which the to in the habe- McCoy’s cutor’s and affidavits conceal, trial Petitioner’s counsel would be more, might be proceedings, as without person prosecutor the last that the would prove insufficient to that their actions con- Although want to know about it. Petition- a fraud on the is the stituted court—which attempted question er’s trial counsel justice interests of very reason McCoy at trial about the existence wit- evidentiary hearing where require McCoy might deal that have had with the subjected to cross-examina- nesses can be prosecutor provide testimony in ex- tion. change prosecutor’s promise for the not to also significant It is that Petitioner ob- McCoy simply any denied that prosecute, McCoy had told a tained evidence that agreed deal had been to. A very story in another context. different emphasized The distinct court report separate in a presentence only were saying that he had quotes case “contemporaneous personal ones with immunity received matter,” but knowledge concerning McCoy’s testifying against Petitioner. they people are also the would have who presented affidavit in the initial habeas strongest motivation to conceal he claims he does not know proceedings, extraordinary It seems got into his deal existed. immunity how the statement just accept as credible Subsequent their affidavits presentence report. *11 344 they Demjanjuk, claimed to have had to be extradited.” 10

simply because F.3d knowledge, particularly Following special re- contemporaneous master’s port, the where has been inconsistent and Court determined fraud on contradictory over time to whether he the court had been committed and vacated as immunity by previous judgment allowing its for extradi- promised prosecutor. was tion. Therefore, in- considering McCoy’s in case, evidentiary In this a remand for an positions

consistent and the other evidence deal, proper hearing undoubtedly preferable of an undisclosed course is evidentiary majority’s would have been to hold an that if position parties to an hearing; and this Court should remand undisclosed deal continue to assert that no exists, hearing impossible this case for such a to be conduct- deal it should be for a evidentiary At an hearing, get ed. such to even the chance to test testimony district court could consider the their assertions cross-examination. “A witnesses, including McCoy hide, ... declaring ‘prosecutor may and the rule cross-examination, subject prosecutor, defendant must seek’ is not tenable a credibility system and determine the of the wit- constitutionally bound to accord process.” nesses and whether the affidavits that defendants due Banks Dret- ke, 1256, pro- were submitted in the initial habeas 540 124 U.S. S.Ct. 157 (2004). If ceedings Quite simply, were fraudulent. the district L.Ed.2d 1166 with- credible, court finds the witnesses it could out a McCoy, chance to cross-examine made, witnesses, then conclude that no was prosecutor, possibly deal and other thus no fraud on the court occurred. prove Petitioner could never the existence though may deal. Even there have An evidentiary hearing assuredly a been a deal between response allegations reasonable to serious cution, likely, apparently seems there is of fraud on the court. This Court’s most evidence, quantum no circumstantial or thorough evaluation of a Rule otherwise, majority that could convince the place based on fraud on the court took that an evidentiary hearing is warranted. 338, Demjanjuk v. 10 Petrovsky, F.3d (6th Cir.1993). case, In that surrounding McCoy’s Court events testi previously denied the petition mony, addition to his statements Morrow, Demjanjuk, alleged Nazi strong probability war crimi- raise a a Demjanjuk nal. See v. Petrovsky, 776 deal was reached that should have been (6th Cir.1985). Subsequently, F.2d 571 in conformity Brady disclosed v. Ma Court possible exculpato- ryland, became aware of (1963).

ry might evidence that not have been dis- L.Ed.2d 215 Our case law is abun Demjanjuk. simply dantly closed to Rather than unspoken, clear that “even tacit evidentiary conduct an hearing, agreements the Court understandings may or mutual reopened then proceedings eventually constitute evidence favorable to the ac took the much more resource-intensive cused that must be disclosed.” Akrawi v. Booker, (6th Cir.2009). step convening special master to “take testimony prepare report emphasized on the This rule our en banc Bell, government issue of whether failure of at- ruling Bell v. 512 F.3d Cir.2008). torneys There, exculpatory to disclose information Brady we did not find a violation, possession prosecutori- their constituted but the who have al misconduct or fraud the court that specifically made deal testified before the allowing Demjanjuk misled the court into district court on the witness stand that no *12 If agreement kind been made. FOX, Plaintiff-Appellant, M. Susan prosecutor testify so case, judge and the district were to v. testimony, credit that the matter would be Instead, CITY AREA prosecution’s

settled in the favor. TRAVERSE PUBLIC EDUCATION, BOARD majority argues allowing SCHOOLS OF City Schools, Traverse Area merely unchallenged cution to file affida- Public Davis, Christine M. very vits where the nature of the and Robert T. Pe- ters, Defendants-Appellees. allegedly prevents withheld Petitioner— without aid of the truth-seeking device No. 09-1688. ir- discovering cross-examination-—-from proof refutable a deal existed. As the United States Court of Appeals, noted, Supreme Court has cross-examina- Sixth Circuit. “greatest legal engine tion is the ever in- Argued: March 2010. discovery

vented for the of truth.” Cali- Green, fornia Decided and May Filed: (1970). 1930, 26 L.Ed.2d 489 Because the record before this Court very possibility

indicates a real had, at a mini- mum understanding, “reached mutual al- unspoken”

beit would not be Bell, prosecuted, an evi- dentiary hearing should be held to deter- mine whether the affidavits submitted in

the initial habeas proceeding constituted a Only way fraud on the court. in that might process we be assured that due afforded, done, justice been has been and that we have avoided the conse- mistake,

quences recognizing penalty must in a death case such as this special.” that “death is I respectfully therefore dissent.