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Ewing v. Woods

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

April 30, 2019

DARRELL RASHARD EWING, Petitioner,
v.
JEFFREY WOODS, Respondent.

          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

         This 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.

         I. Background

         Darrell 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.

         Petitioner 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).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 495 Mich. 935, 843 N.W.2d 200 (2014).

         Petitioner 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.

         This 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).

         Respondent 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., at 1034.

         II. Discussion

         A. The Clerk of the Court is ordered to reopen the case.

         Federal 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.

         B. The Court Amends the Terms of ...


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