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Clark v. Nagy

United States District Court, E.D. Michigan, Southern Division

July 3, 2018

GEORGE EDWARD CLARK, Petitioner,
v.
NOAH NAGY, [1] Respondent,

          OPINION AND ORDER GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

          HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE

         George Edward Clark, (“Petitioner”), confined at the Lakeland Correctional Facility in Coldwater, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for first-degree felony murder, M.C.L.A. 750.316. Petitioner was denied his Fourteenth Amendment right to due process by the suppression of potentially exculpatory evidence; the Court GRANTS the petition for writ of habeas corpus.

         I. Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court, in which he was jointly tried with co-defendant Kevin Harrington.

         After exhausting his state court remedies, Petitioner filed a petition for writ of habeas corpus, which this Court denied. Clark v. Romanowski, No. 08-10523, 2010 WL 3430782 (E.D. Mich. Aug. 30, 2010), aff'd, 472 F. App'x. 348 (6th Cir. 2012).

         Petitioner filed a motion for an order authorizing the district court to consider a second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A) with the United States Court of Appeals for the Sixth Circuit. The motion was based in part on an affidavit from Ms. Keneka Jackson, dated August 10, 2015. Ms. Jackson is the daughter of a detective with the Inkster Police Department. Ms. Jackson says she witnessed a dark skinned African-American man forcing the victim into the woods at gunpoint before hearing gunshots. Ms. Jackson claims that Petitioner was not the shooter. Ms. Jackson claims that she told her father what she saw and heard; namely, that Petitioner was not involved in the shooting. She says her father informed her that he would take care of the matter and ordered her to keep quiet so as not to put her life in danger.[2]

         The Sixth Circuit granted Petitioner permission to file a second habeas petition based on newly discovered evidence. The Sixth Circuit concluded that “Jackson's statements, if true, potentially exculpate Clark, especially given that there was no physical evidence linking him to the crime and no witness observed the actual shooting.” In Re Clark, No. 15-2156, * 4 (6th Cir. Mar. 28, 2016). The Sixth Circuit further ruled that “although Clark has not expressly stated a claim in connection with this new evidence, Jackson's allegation about her father, if proven, suggests that the police withheld information from the prosecutor that would exculpate Clark and that the prosecutor failed to disclose this information to Clark in violation of Brady v. Maryland, 373 U.S. 83 (1963). Id., at * 4-5.

         Petitioner filed the current petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court held it in abeyance to permit Petitioner to return to the state courts to exhaust his Brady claim. Clark v. Hoffner, No. 2:16-CV-11959, 2016 WL 3269552 (E.D. Mich. June 15, 2016).

         Petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. Seq. The judge indicated that this was a successive motion for relief from judgment and that in order to be entitled to post-conviction relief, Petitioner was required to satisfy the dictates of MC.R. 6.502(G)(2), which allows the filing of a successive motion for relief from judgment only if the claim is based on a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion. People v. Clark, No. 02-013361-01-FC, * 2-3 (Third Cir. Ct., Nov. 16, 2016). The judge noted that to meet the burden of establishing entitlement to file a successive motion for relief from judgment, Petitioner was required to establish a four-prong test under People v. Cress, 468 Mich. 678, 664 N.W.2d 174 (2003) for proving that the evidence was newly discovered: (1) the evidence and not merely its materiality must be newly discovered, (2) the evidence must not be cumulative, (3) the evidence could not have been discovered with due diligence at trial, and (4) the evidence must make a different result probable at trial. Id., at * 3.

         The judge concluded that Petitioner had not met the fourth prong under Cress, i.e. that the new evidence would have made a different result probable at trial, so as to permit Petitioner to file a successive motion for relief from judgment. Id. at * 4-5. The judge never explicitly addressed the merits of Petitioner's claim that the police or prosecutor had intentionally withheld potentially exculpatory evidence, in violation of Brady v. Maryland, infra.

         Petitioner filed a motion for reconsideration. The judge denied the motion for reconsideration. People v. Clark, No. 02-013361-01-FC, * 2-3 (Third Cir. Ct., Dec. 22, 2016). The judge did not discuss the merits of Petitioner's Brady claim in this order.

         The Michigan Court of Appeals dismissed Petitioner's application for leave to appeal on the ground that M.C.R. 6.502(G)(1) prohibits an appeal from the denial of a successive motion for relief from judgment. People v. Clark, No. 336319 (Mich.Ct.App. Ct., Mar. 1, 2017). Petitioner did not file an appeal with the Michigan Supreme Court. See Affidavit of Larry Royster, Clerk of the Michigan Supreme Court, dated April 2, 2018. Dkt. # 15-37.

         The Court subsequently reopened the petition to the Court's active docket. Petitioner claims that his due process rights were violated by the suppression of exculpatory evidence by an Inkster Police Department detective.

         II. Discussion

         The Court grants Petitioner a writ of habeas corpus; Petitioner was denied his Fourteenth Amendment right to due process by the suppression of potentially exculpatory evidence from Ms. Jackson: that she had informed her father, an Inkster police detective, that Petitioner was not one of the men involved in the shooting.

         A. Petitioner's second habeas petition satisfies the standard under 28 U.S.C. § 2244(B) for filing a second or successive habeas petition.

         Respondent argues that Petitioner's successive habeas petition should be dismissed pursuant to 28 U.S.C. § 2244(b)(4), because his Brady claim fails to satisfy the requirements for filing a second or successive habeas petition.[3] This Court disagrees.

         Respondent initially argues that the Sixth Circuit overstepped its bounds in granting Petitioner permission to file a successive habeas petition to raise a Brady claim when Petitioner did not specifically seek to raise a Brady claim in his second habeas petition. Respondent appears to raise this argument primarily to preserve the issue in case there is an appeal.[4]

         Under the law of the case doctrine, a court is ordinarily precluded from re-examining an issue previously decided by the same court, or by a higher court in the same case. Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 (6th Cir. 1996). “Under the doctrine of law of the case, findings made at one point of the litigation become the law of the case for subsequent stages of that same litigation.” United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). The law of the case doctrine has been applied to habeas cases in various contexts. See Crick v. Smith, 729 F.2d 1038, 1039 (6th Cir. 1984).

         28 U.S.C. § 2244(b)(3)(E) states that the grant or denial of an authorization to file a second or successive habeas corpus petition “shall not be appealable.” Further, it shall not be subject for a petition for rehearing or for a petition for writ of certiorari. See In Re King, 190 F.3d 479, 480-481 (6th Cir. 1999).

         The Sixth Circuit decided that Ms. Jackson's affidavit potentially established a Brady violation and thus granted Petitioner permission to file a second petition in which to raise this claim. Both the law of the case doctrine and 28 ...


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