United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING THE PETITION FOR A WRIT OF
HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
Rashard Ewing, (“Petitioner”), confined at the
Chippewa Correctional Facility in Kincheloe, Michigan, filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, through his attorneys Phillip D. Comorski and
Byron Pitts, challenging his convictions for first-degree
murder, M.C.L. § 750.316, three counts of assault with
intent to commit murder, M.C.L. § 750.83, and possession
of a firearm during the commission of a felony
(felony-firearm), M.C.L. § 750.227b. For the reasons
that follow, the petition for a writ of habeas corpus is
was convicted following a jury trial in the Wayne County
Circuit Court, in which he was jointly tried with his
co-defendant Derrico Devon Searcy. This Court recites
verbatim the relevant facts relied upon by the Michigan Court
of Appeals, which are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner
v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
These consolidated appeals arise from a shooting at the
intersection of Harper and Van Dyke, in the city of Detroit
on December 29, 2009. At the time of the shooting, J.B.
Watson and his girlfriend, LaRita Thomas, were in
Thomas's van along with Phillip Reed and Willie Williams.
The van was stopped at the intersection of Harper and Van
Dyke in Detroit for a traffic signal. Raymond Love testified
that while driving on Harper, a turquoise vehicle turned onto
Harper and the two vehicles drove side by side for a short
while. Love identified the driver of the turquoise vehicle as
Searcy. In that turquoise vehicle, there were also two other
black males, one of which was later identified as Ewing. When
Love reached the red traffic light at the Van Dyke
intersection, the turquoise car pulled to the curb, staying
back about six or seven car lengths. Ewing then exited the
vehicle with a handgun drawn, approached Thomas's van,
and fired many shots into the rear of the van. After
shooting, Ewing retreated to the turquoise car, which by that
time had moved into the middle of Harper, and the car left in
the opposite direction on Harper.
Watson died of injuries he received from the gunshot wounds.
Reed was injured in the attack, with a bullet striking him in
his left hand. Watson, Reed, and Williams are cousins and
members of a gang identified as the Knock Out Boys (KOB).
Searcy and Ewing were alleged to be members of a rival gang
called the Hustle Boys.
People v. Searcy, No. 301751, 2013 WL 4609125, at *1
(Mich. Ct. App. Aug. 29, 2013).
conviction was affirmed on appeal. Id., lv.
den. 495 Mich. 935, 843 N.W.2d 200 (2014).
seeks a writ of habeas corpus on the following grounds:
I. Petitioner's due process rights were violated when the
trial court failed to give the deadlocked jury instruction,
thereby depriving petitioner of his federal constitutional
rights of due process of law and a fair and impartial
verdict, as guaranteed under the Fifth, Sixth and Fourteenth
Amendments of the U.S. Constitution.
II. Petitioner was denied a fair trial and impartial jury
under the federal constitution where, during jury
deliberations, the jurors brought in extraneous information
from Facebook and the internet about petitioner Ewing, Mr.
Watson, gangs, and gang pecking orders, and the jurors used
this information to convict petitioner Ewing.
III. Where Tyree Washington signed an affidavit after trial
in which he confessed to the instant offenses, this newly
discovered evidence requires that this petition be granted
or, at least, that an evidentiary hearing be ordered.
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
Court will first discuss petitioner's second claim,
because this is the claim upon which the Court grants relief.
Petitioner alleges that his due process rights were violated
by introduction of extraneous internet evidence brought into
jury deliberations by two jurors, which compromised jury
trial court initially addressed the use of internet
information prior to trial, when the assistant prosecutor
requested to amend her witness list to add Police Officer
Terri Graves to testify as an ...