United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING THE PETITION FOR WRIT OF
HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
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.
was convicted following a jury trial in the Wayne County
Circuit Court, in which he was jointly tried with
co-defendant Kevin Harrington.
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).
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
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.
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).
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.
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,
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.
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.
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.
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
Petitioner's second habeas petition satisfies the
standard under 28 U.S.C. § 2244(B) for filing a second
or successive habeas petition.
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. This Court disagrees.
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.
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).
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).
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 ...