United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ON REMAND (1) DIRECTING THE CLERK
OF THE COURT TO REOPEN THE CASE, (2) MODIFYING THE TERMS OF
THE CONDITIONAL GRANT, (3) DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS ON THE REMAINING CLAIMS, (4) DENYING A
CERTIFICATE OF APPEALABILITY, AND (5) GRANTING PETITIONER
LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
case is before the Court on remand from the United States
Court of Appeals for the Sixth Circuit. The Court orders the
Clerk of the Court to reopen the case to the Court's
active docket. The Court modifies the terms of its previous
order granting a conditional writ of habeas corpus. The Court
denies the petition with respect to the remaining claims.
Rashard Ewing, (“Petitioner”), confined at the
Kinross 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.
was convicted following a jury trial in the Wayne County
Circuit Court. 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, Nos. 301751, 301758, 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).
sought 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.
Court granted habeas relief on petitioner's second claim,
finding that extraneous information had been brought into the
jury room during deliberations, that the jurors had used this
information to convict petitioner, and that the error was not
harmless. This Court ordered the State of Michigan to either
conduct a new trial or release petitioner from custody. This
Court declined to address the other two claims. Ewing v.
Horton, No. 2:15-CV-10523, 2017 WL 5564603 (E.D. Mich.
Nov. 20, 2017).
appealed to the Sixth Circuit. The Sixth Circuit affirmed in
part this Court's decision, agreeing that extraneous
information had been used to convict petitioner. Ewing v.
Horton, 914 F.3d 1027, 1030 (6th Cir. 2019). The Sixth
Circuit, however, concluded that the proper remedy for this
constitutional violation would not be a new trial but would
be granting a writ of habeas corpus conditioned upon the
state trial court conducting an evidentiary hearing pursuant
to Remmer v. United States, 347 U.S. 227, 229-30
(1954) to determine what impact, if any, this extrinsic
evidence had on the jurors' decision. Id., at
1031-34. The Sixth Circuit remanded the matter to this Court
to issue an amended order granting habeas relief. The Sixth
Circuit also left it to this Court's discretion whether
to address petitioner's remaining claims. Id.,
The Clerk of the Court is ordered to reopen the
courts have the power to order that a habeas petition be
reinstated in various contexts. See e.g. Rodriguez v.
Jones, 625 F.Supp.2d 552, 559 (E.D. Mich. 2009). In
light of the fact that this case has been remanded by the
Sixth Circuit to this Court to amend the original order
granting habeas relief and to consider petitioner's
remaining claims, the Court will reopen the petition and
order the Clerk of the Court to reinstate this case to the
Court's active docket.
The Court Amends the Terms of ...