Petition for Writ of Certiorari — In Re Vincent Johnson, Petitioner

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

Scott S. Harris

Clerk of the Court

April 1, 2019

(202) 479-3011

Mr. Vincent Johnson

Prisoner ID A688-089

Chillicothe Correctional Institution

P.O. Box 5500

Chillicothe, OH 45601

Re: Vincent Johnson

v. United States Court of Appeals for the Sixth Circuit

No. 18-7688

Dear Mr. Johnson:

The Court today entered the following order in the above-entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

Scott S. Harris, Clerk

Appendix A

No. 18-3492

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re: VINCENT JOHNSON,

Jul 16, 2018

DEBORAH S. HUNT, Clerk

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Petitioner.

ORDER

BEFORE: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.

Vincent Johnson petitions for a writ of mandamus and moves for leave to proceed in

forma pauperis. Johnson seeks a writ of mandamus pursuant to 28 U.S.C. §§ 1651 and 1361 to

compel the clerk of the court to file a motion he submitted pursuant to “Federal Rule of Civil

Procedure 60(b)(6)” in his habeas corpus appeal, 16-4076.

Mandamus relief is not warranted. “[M]andamus relief is an extraordinary remedy, only

infrequently utilized by this court.” John B. v. Goetz, 531 F.3d 448,457 (6th Cir. 2008) (quoting

In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 1997)). To obtain mandamus relief, the petitioner

must show, among other things, a “clear and indisputable” right to issuance of the writ. In re

U.S., 817 F.3d 953, 960 (6th Cir. 2016) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 381

(2004)). Johnson has not made such a showing. In his habeas corpus proceeding, the clerk of

the court refused to file Johnson’s “Rule 60(b)’^motion for an entirely proper reason: the case

s

was closed. Specifically, this Court had denied aJZOA, and the Supreme Court had denied

certiorari. Without a COA, the case could not continue. See 28 U.S.C. § 2253(c)(1)(A) (“Unless

a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the

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court of appeals from the final order in a habeas corpus proceeding^]”).

Appendix B

No. 18-3492

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Therefore, Johnson’s petition for mandamus fails and must be denied. Should Johnson

have a valid claim to present, he may file a motion under 28 U.S.C. § 2244 for leave to file a

second or successive habeas corpus petition under 28 U.S.C. § 2254.

The petition for writ of mandamus is DENIED, and the motion to proceed in forma

pauperis is DENIED AS MOOT.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

No. 18-3492

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: VINCENT JOHNSON

FILED

Sep 05, 2018

DEBORAH S. HUNT, Clerk

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Petitioner.

ORDER

®^^ORE: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Appendix C

u'x.-'.

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VINCENT JOHNSON ,

Case No. 16-4076

Petitioner-Appellant

v.

CHARLOTTE JENKINS,

Re^pondent-Appelie

i

Pule 60(b)(6)

motion

Now comes Vincent johnson Pro Se asking this court to set

aside judgment denying his COA in the above mentioned case.

Persuant to Buck v. Davis 137 S. Ct. 759. Petitioner states there

was a defect in the integrity of the proceedings in which petitioner's

COA was denyed. Therefor in good conscience this court's judgment

should not be enforced. See attached Memorandom.

VINCENT JOHNSON

&88-089

Appendix D

:

MEMORANDUM IN SUPPORT

Pursaunt to 60(b)(6)

of the Fedral

Rules of Civil Procedure

petitioner seeks reopening of the court's April 27, 2017 opinion

anc

arder denying his request for a certifcate of appealability.

Rule 60(b) allows a party to seek relief from a finale judgement and

request reopening of •

Th e

his case under a limited set of circumstances.

decision to grant 60(b)(6) relief is a case by case inquiry

that': requires the trial court to intensively balance numerous factors,

iricl iding the command of the court's conscience that justice be done

irili jht of all the facts. Thompson v. Bell, 580 F. 3d 423, 442 (6th Cir.

200 3). Futher, public policy favoring finality of judgments and

termination of litigation contrains relief under the provision of

rule 60(b), under which a court may grant relief, only in exceptional

■:

extraordinary circumstances where principle of equity mandate relief.

Frahfclin v. Jenkins, 839 _3d. 465, 472(6th Cir. 2016).

5 e titioner states that the court missapplied the standard governing

the issuance of certifcate of appealability, in view of Buck v. Davis

137 s .Ct. at 759. In Davis, the Supreme Court held, until a petitioner

secures a C.O.A. a circuit court should not decide the merits on a

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app.li catin for a certificate of appealability see, Miller El v. Cockwell

53 7 C.S. 322, 336. A C-O.A. may be issued only if the petitioner

maces a substanial showing of the denial of a constitutional right 28' U.S C

2251 (c)(2). A petitioner satifies this standard by demonstrating that

juris t of reason could disagree with the District court's resolution

of hi s

constitutional claim or that jurist could conclud the issue

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presented are adequate to deserve encouragment to proceed futher.

I

MIL ler El v. Cockwell 537 U.S. 322, 327 (2003). In the case sub judice

thp court soley relied on the' Dist.' court ' s findings of a! procedural

bar and disregauarded petitioner supplement to ground one in it * s

int ial analysis and essentially decided this case on the merits. To

properly determin weather or not C.O.A. should have been granted

the court should have included the supplement argument to ground one

in

its examination and ask only if the petitioner has shown the Dist.

cohtjtj's resolution debatable. Miller 537 U.S. at 327,348. When reviewing

the court's opinion there is nothing which would give one reason to

concl ud that the court considered the supplement argument in its inquiry

on leather there was substantial showing of the denial of a constitutional

right . The threshold inquiry the court made to ground one was , weather

the claim was cognizable for hebeas review. See third paragraph of pg.

two

This should not be the primary question at the C.O.A. stage,

The court misconstrude the supplement claim.as a seperate argument,

when, fact it is a addition to claim one

and therefor should have been

examined as one argument . When reviewing the court's opinion to the

sup E>-.ement argument, the court ruled,"reasonable jurist could not

dijsIcKjree with the District court's conclusion that petitioner felled

to eixghaust this claim" . see paragraph 2 pg. 3.

When the District court has denied a 2254 petition on procedural

groi; r.ds

a petitioner must show "that jurist of reason would find it

deb table weather the petition states a valid claim of the denial'

of al constitutional right and that jurist of reason would find it

debat able weather the Dist. court was correct in its procedural

Slack v. McDaniel 529 U.S. 473, 484 (2000).

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ruling.]1

I;n this-case the court's inquiry into the procedraul bar is not asking

weather or not petitioner felled to make a showing the procedural bar

:

is debatable among jurist of reason, rather the court is implying,

pet tioner has felled to show the procedural bar is incorrect,

Pe t.ioner argues that this decission was reached by the

court

maki r g a determination into the merits of the procedural default.

This is evident by the court's opinion in the last sentence on pg. 3,

;

as

his court agreed with the District court's resalution it stated

" Be c ause Johnson felled to support his argument with any Federal

cases or state cases relying on federal law, did not allege facts

well within the mainstream of constitutional law and has not cited

any circumstances excusing his procedural default, reasonable jurist

coul d not disagree with the district court's procedural ruling."

'?he COA inquiry is not coextensive with a merit analysis, see

Buck v. Davis 137 S. Ct. 759. When dealing with a procedural bar

at ths COA stage, the only question is weather the applicant has shown

''th a ; jurist of reason would find the district court's procedraul ,bar

lefcjal :able." Slack v. McDaniel 529 U.S. 473, 484 (2000). Weather

petitioner felled to support his argument with any federal cases or

state cases relying on federal law, or cite any circumstances excusing

the procedraul default are ultimate merit determination of this case

the court should not reach. At the COA stage a petitioner is not

required to present circumstances excusing a percieved default. This

places a heavy burden on a petitioner at the COA stage, see Miller

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El 53 7 U.S. at 336,337. When a court of appeals sidesteps the COA

process by first deciding the merits of a appeal and then justisfying

its denial of the COA based on the :

adjudication of the actual

nerit s it is essence deciding an appeal without jurisdiction. See

Buck v. Davis 137 S. Ct. 759.

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Th<£: manner inwhich the court analyzed and then denied petitioner's

real est for COA created a situation which cannot fairly or logically

be Ignored. The court's interpertation of a COA inguiry reguired the

pet itioner to make a ultimate showing of merit rather than a preliminary

showing of the claim being debatable. A review of this argument will

sho’ij

extraordinary circumstances in the court's analysis to deny

petitioner's reguest. First the court seperated the U.S. Supreme Court'

pre s ..dence presented in the suplementary argument

to claim one from claiir

one . Second the threshold inguiry the court made to claim

one was

wea tiher it was cognizable for habeas

review. Third the court procedurally

bare d th.e suplementary claim based on its determination of the merits

of bhe default. It is for these reason movant respectfully reguest

tha t. his 60(b)(6) motion be granted.

VINCENT JOHNSON

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CONCLUSION

The court's seperation of the supplement argument to claim one

wa =

outside the parameter of a initial COA analysis. The only

de Sermination the

court was required to make was wether petitioner

has made a substantial showing of

a denial of

a constitutional right

aha wether resonable jurist could

disagree with the Dist. court's

resalloution of the claim, When dealing with the

procedural bar the

cour t was required to make

a determination on wether resonable jurist

CQUl d find the procedural bar

debatable. Movant asserts that he has

pers ned every available

avenue to remedy this mistake. As there is

nc other corse of action and

for the reasons argued within this

motion

petitioner states that he has demonstrated

exceptional and extraordinary

cir Constances where the princple of equity mandate relief. ,

Yf

/

VINCENT JOHNSON

CERTIFICATE OF SERVICE

I Vincent Johnson under ,o.ath do

has b ee^sent tottop.s. Attorney SenSJal^offic^on^hi^day^f011

VINCENT JOHNSON 688089

CHILLICOTHE CORRECTION

P.O. BOX 5500 45601

Chillicothe Ohio

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!

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Deborah S. Hunt

Clerk

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: January 02, 2018

Mr. Vincent Johnson

Chillicothe Correctional Institution

P.O. Box 5500

Chillicothe, OH 45601

Re: Case No. 16-4076, Vincent Johnson v. Charlotte Jenkins

Originating Case No.: 2:15-cv-00971

Dear Mr. Johnson:

Please find enclosed, unfiled, your motion to reopen and set aside judgment Rule 60(b)(6).

Please be advised that your case is closed, therefore, your documents will not be filed. No further

correspondence will be forthcoming from this office.Type your text here.

Sincerely yours,

s/Leon T. Korotko

Case Manager

Direct Dial No. 513-564-7014

cc: Ms. Maura O'Neill Jaite

Appendix E

....

!

Case: 16-4076

' DEBORAH S. HUNT

Document: 006113299431

Filed: 01/17/2018

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

CLERK

Page: 1

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TELEPHONE

(513)564-7000

January 17,2018

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Vincent Johnson

#688089

Chillicothe Correctional Institution

P.O. Box 5500

Chillicothe, OH 45601

Re: 16-4076, Johnson v. Jenkins

Dear Mr. Johnson,

Your recent letter to Chief Judge Cole was forwarded to me for review and response.

Judges of this court do not correspond with litigants regarding cases that are or were pending

before the court.

In your letter, you ask about a Rule 60(b)(6) motion asking the court to reopen and set

aside the judgment in your case. As you know, in your appeal here, the court denied a certificate

of appealability. Your petition for en banc rehearing was circulated to the entire court, and after

review, the court denied rehearing. This terminated your case because this appeal could not

proceed without a certificate of appealability.

Your Rule 60(b) motion was twice returned to you because this court as an appellate

court does not review Rule 60 motions; such motions are generally filed in the trial court with

respect to trial court proceedings.

Sincerely,

Susan Rogers

Chief Deputy Clerk

Appendix F

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Case: 2:15-cv-00971-JLG-EPD Doc #:. 27 Filed: 08/17/17 Page: 1 of 3 PAGEID #: 966

IN THE UNITED STATES DISTRICT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

VINCENT JOHNSON,

CASE NO. 2:15-CV-00971

JUDGE JAMES L. GRAHAM

Magistrate Judge Elizabeth A. Preston Deavers

Petitioner,

v.

WARDEN, CHILLICOTHE

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On September 15, 2016, Judgment was entered dismissing the petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 19.) On September 26, 2016, the Court

issued an Opinion and Order denying the request for a certificate of appealability. (ECF No.

22.) On April 27, 2017, the United States Court of Appeals for the Sixth Circuit denied

Petitioner’s application for a certificate of appealability. (ECF No. 25.) Petitioner has filed a

Motion to Set Aside Judgment. (ECF No. 26.) For the reasons that follow, the motion (ECF No.

26) is DENIED.

Petitioner seeks reconsideration pursuant to Rule 60(b)(6) of the Federal Rules of Civil

Procedure of the Court’s September 16, 2016, Opinion and Order denying his request for a

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certificate of appealability.. Referring to Buck v, Davis, — U.S.

137 S.Ct. 759 (2017),

Petitioner contends that the Court improperly denied his request for a certificate of appealability .

Assuming that Petitioner’s motion may properly be addressed under Rule 60(b) (see

Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) ifRule 60(b) cannot be used to circumvent the

limitations on the filing of successive habeas corpus petitions under 28 U.S.C. § 2244(b)(3)), the

record nonetheless fails to reflect that relief is warranted. “[T]he decision to grant Rule 60(b)(6)

Appendix G

Case: 2:15-cv-00971-JLG-EPD Doc #: 27 Filed: 08/17/17 Page: 2 of 3 PAG El D #: 967

relief is a case-by-case inquiry that requires the trial court to intensively balance numerous

„ factors, including the competing policies of the finality of judgments and the incessant command

of the court's conscience that justice be done in light of all the facts.” Thompson v. Bell, 580

F.3d 423, 442 (6th Cir. 2009) (citing Blue Diamond Coal Co. v. Trustees ofUMWA Combined

Benefits Fund, 249 F.3d 519, 529 (6th Cir. 2001)). Further, “public policy favoring finality of

judgments and termination of litigation” constrains relief under the provision of Rule 60(b);

“[particularly strict standards apply to motions made pursuant to Rule 60(b)(6), under which a

court may grant relief" ‘only in exceptional or extraordinary circumstances’ where principles of

equity ‘mandate’ relief.” Franklin v. Jenkins, 839 F.3d 465, 472 (6th Cir. 2016) (citations

omitted). Such are not the circumstances here.

Petitioner maintains that the Court misapplied the standard governing the issuance of a

certificate of appealability, in view of Buck, 137 S.Ct. at 759. In Buck, “the Supreme Court held

a circuit court should not decide the merits on an application for a certificate of appealability, butr

just the debatability question.” Dilingham v. Warden, No. 1:13-cv-468, 2017 WL 2569754, at *2

(S.D. Ohio June 14, 2017). “To put the merits question first, the Court said, is to decide the

merits of an appeal without jurisdiction to do so because appellate jurisdiction depends on there

being an issued certificate of appealability.” Id. However, Buck does not assist Petitioner here.

See id. (It is only in the Court of Appeals that “the appealability question comes first as held in

Buck.”); see also United States v. Alford, No. 3:00-cr-065, 2017 WL 1734225, at *2 (S.D. Ohio

May 4, 2017) (concluding that Buck does not retroactively apply to cases on collateral review).

Moreover,

once this Court has made a decision regarding appealability and

the matter is addressed de novo by the Sixth Circuit, this Court's

decision becomes moot. And the Sixth Circuit's decision regarding

whether a certificate of appealability should or should not issue

2

Case: 2:15-cv-00971-JLG-EPD Doc #: 27 Filed: 08/17/17 Page: 3 of 3 PAGEID #: 968

becomes the law of the case and must be followed by this Court.

Therefore, Cook cannot seek relief from this Court based upon a

claim that an incorrect decision was made on issuance of a

certificate of appealability. If he clams the error was committed by

this Court, the issue is moot because it was addressed subsequently

by the Sixth Circuit de novo. Conversely, if he claims that the

Sixth Circuit erred in not issuing a certificate of appealability, he is

making a claim beyond the reach of this Court unless and until the

Sixth Circuit permits a second or successive motion to be filed.

United States v. Cook, No. 5:06-183-DCR, 2017 WL 2872369, at *3 (E.D. Ky. My 5, 2017); see

also United States v. Alford, 2017 WL 1734225, at *2 (“[T]his Court does not have jurisdiction

to change, a decision of the Sixth Circuit.”); Dilingham, 2017 WL 2569754, at *2 (“[W]e have no

power to issue a certificate when the court of appeals has determined on the same record that was

before us that a certificate is not warranted.”).

Therefore, Petitioner’s Motion to Set Aside Judgment (ECF No. 26) is DENIED.

IT IS SO ORDERED.

Date: August 17, 2017

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

3

SECiMiD

MAY 0 2 2017

No. 16-4076

CHILLICOTHE CORRECTIONAL

UNITED STATES COURT OF APPEALS _______ INSTITUTION

FOR THE SIXTH CIRCUIT

FILED

VINCENT JOHNSON,

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Petitioner-Appellant,

v.

CHARLOTTE JENKINS, Warden,

Respondent-Appellee.

Apr 27, 2017

DEBORAH S. HUNT, Clerk

ORDER

Vincent Johnson, an Ohio prisoner proceeding pro se, appeals the district court’s

judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

He has filed an application for a certificate, of appealability (“COA”). See Fed. R. App. P.

22(b)(1). He has also filed three motions for leave to proceed in forma pauperis (“EFP”) on

appeal. See Fed. R. App. P. 24(a)(5). The warden opposes Johnson’s COA application and IFP

motions.

In 2013, a jury convicted Johnson on two counts of rape, one count of attempted rape,

one count of kidnapping, one count of abduction, and one count of domestic violence, with

specifications. Johnson’s convictions arose from an incident during which he beat his girlfriend,

urinated on her, and then sexually assaulted her. The trial court sentenced Johnson to an

aggregate term of thirty-nine years of imprisonment. The Ohio Court of Appeals affirmed

Johnson’s convictions but remanded for resentencing, State v. V.J., No. 13AP-799, 2014 WL

2781598 (Ohio Ct. App. June 17, 2014), and the Ohio Supreme Court denied leave to appeal.

The trial court resentenced Johnson to an aggregate term of thirty-nine years, and Johnson

voluntarily dismissed his appeal from the trial court’s resentencing decision.

Appendix H

*.

No. 16-4076

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Johnson then filed this § 2254 habeas petition, raising two grounds for relief: (1) the trial

court violated state evidentiary rules and his rights to due process and equal protection by

admitting DNA evidence; and (2) the trial court violated his state and federal constitutional rights

by amending the indictment without grand jury intervention. Johnson later filed, with leave of

the court, a supplementary memorandum as to his first ground for relief. The magistrate judge

entered a report recommending that Johnson’s petition be dismissed. Over Johnson’s objections,

the district court adopted the report and recommendation, dismissed Johnson’s petition, and

declined to issue a COA.

Johnson now seeks a COA on both grounds for relief presented in his petition.

A COA may issue only if a petitioner makes “a substantial showing of the denial of a

constitutional right.”

28 U.S.C. § 2253(c)(2).

“A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When the

district court has denied a § 2254 petition on procedural grounds, a petitioner must show “that

jurists of reason would find it debatable whether the petition states a valid claim of the denial of

a constitutional right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

In his first ground for relief, Johnson argues that the trial court violated state evidentiary

"rules and his rights to due process and equal protection by admitting DNA evidence from semen

recovered during the victim’s sexual assault examination. Johnson claims that this evidence was

irrelevant and unfairly prejudicial because the victim admitted at trial to having had consensual

sex with Johnson less than seventy-two hours before the DNA evidence was collected. f To the

4 extent that Johnson argues the trial-court violated state evidentiary rules, reasonable jurists could

not disagree with the district; court’s conclusionthatthis claim; was not cognizable on habeas

rpview^rSelTEsfelle vrMcGuire, 502 U.S. 62, 67-68 (1991). Habeas review of state evidentiary

rulings is “extremely limited.” Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). State courts

No. 16-4076

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are the “final arbiters” of a state law’s meaning and application, and a federal court is not the

proper forum to adjudicate such issues. Summers v. Leis, 368 F.3d 881, 892 (6th Cir. 2004). In

rejecting Johnson’s claim, the Ohio Court of Appeals cited the state’s rules of evidence and

concluded that the DNA evidence was relevant because it corroborated the victim’s testimony

and was not prejudicial because it “would be there anyway from the previous act.” The district

court properly determined, based on the state appellate court’s ruling, that the admission of the

DNA evidence did not prejudice Johnson to the extent that he was denied a fundamentally fair

trial, so as to warrant habeas relief. See McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004).

To the. extent, that Johnson argues the trial court-violated his-federal constitutional rights

in admitting the DNA evidence,; reasonable jurists coiild not disagree with the district court’s

conclusion that.he Tailed to properly exhaust this claim,

“The federal courts do not have

jurisdiction to consider a claim in a habeas petition that was not ‘fairly presented’ to the state

courts.” McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). In order to meet the fairpresentment requirement, a petitioner must “assertQ both the factual and legal basis for his claim

tofthe state courts.” Zd. This requirement may be met in four ways: “(1) reliance upon federal^

cases employing constitutional analysis; (2) reliance upon state cases employing federal j

constitutional analysis;, (3) phrasing the' claim in terms of constitutional law or in terms

sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts

well within the mainstream of constitutional law.” Id. /Johnson argued in the Ohio Court of ,

Appeals that the'-admission -of the DNA :eyjdence ViolatedJiis right to due process and equal

protection. -However, “[g]eneral allegations of the denial of rights to a ‘fair trial’ and ‘due ,f

process’ do not ‘fairly present’ claims that specific constitutional rights were violated.” Id.

Because Johnson failed to support his argument with any federal cases or state cases relying on

,

federal law, did not “alleg[e] facts well within the mainstream of constitutional law,” and has not;

cited any circumstances excusing his procedural default, reasonable jurists could not disagree *

with the district court’s procedural ruling. Ids

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No. 16-4076

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In his second ground for relief, Johnson argues that the trial court violated his state and

federal constitutional rights by amending Counts Seven and Eight of the indictment without

grand jury intervention. To the extent that Johnson asserts a violation of his state constitutional

rights, reasonable jurists could not disagree with the district court’s conclusion that this claim

was not cognizable on habeas review. See Estelle, 502 U.S. at 67-68. To the extent that Johnson

asserts a violation of his federal constitutional rights, “due process mandates only that the

indictment provide the defendant with ‘fair notice of the charges against him to permit adequate

preparation of his defense.’” Williams v. Haviland, 467 F.3d 527, 535 (6th Cir. 2006) (quoting

Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984)). Counts Seven and Eight charged Johnson

with abduction and domestic violence and, in amending the indictment, the trial court removed

from these counts only repeat-violent-offender specifications. Because the trial court did not

change the name or identity of the predicate offenses charged in Counts Seven and Eight,

reasonable jurists could not disagree with the district court’s conclusion that the indictment was

constitutionally sufficient. See id.

For these reasons, Johnson’s COA application is DENIED and his IFP motions are

DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Additional material

from this filing is

available in the

Clerk's Office.