Argued: May 10, 2019
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:16-cv-11959-Victoria
A. Roberts, District Judge.
Banghart-Linn, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellant.
H. Ranjan, JONES DAY, Columbus, Ohio, for Appellee.
Banghart-Linn, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellant.
H. Ranjan, Tiffany D. Lipscomb-Jackson, Alexandra L. Schill,
JONES DAY, Columbus, Ohio, for Appellee.
Before: BOGGS, BATCHELDER, and STRANCH, Circuit Judges.
B. Stranch, Circuit Judge.
George Clark was found guilty of murder in 2003. The case
against him hinged on the preliminary testimony of a single
eyewitness who, during the trial, refused to verify her
incriminating statements. She has since recanted. This motion
for habeas relief is premised on an exculpatory affidavit
from another purported eyewitness to the crime-one who states
that her father, a city police detective, told her not to
report what she had seen. Clark was granted permission to
file a second or successive habeas petition in light of the
alleged suppression of evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The district court
considered the claim and, without holding an evidentiary
hearing, granted a conditional writ of habeas corpus. See
Clark v. Nagy, No. 2:16-cv-11959, 2018 WL 3239619, at *8
(E.D. Mich. July 3, 2018). An evidentiary hearing is
necessary to determine both whether Clark has made out a
Brady violation and whether the requirements of
§ 2244(b)(2)(B) of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) are satisfied. We therefore
REVERSE the district court's decision
and REMAND for further proceedings
consistent with this opinion.
Trial and Post-Conviction Proceedings
2003, George Clark and Kevin Harrington were jointly tried in
a Michigan state court for the murder of Michael Martin. The
only evidence connecting Clark to the crime was the
preliminary testimony of Martin's neighbor, Bearia
Stewart. But when she was called to the stand, Stewart would
not say what she had seen the day of the murder. The
prosecutor asked if she was afraid or nervous; she responded
she was not. Stewart agreed that she had been threatened but
would not say by whom. The prosecutor attempted to refresh
her recollection with her testimony from preliminary
examinations, but Stewart would not ratify her earlier
statements. As a result, the judge declared Stewart
unavailable and had her preliminary testimony, including
cross-examinations, read to the jury. Clark's attorney,
who had not been counsel of record during the preliminary
proceedings, was not permitted to cross-examine Stewart.
Clark's preliminary hearing, Stewart testified as
follows. She was behind her house when she saw Clark and
Harrington drive up to Martin's porch. The men began to
argue and then to fight, with Clark punching Martin. Clark
and Harrington "dragged" Martin away through a
nearby field toward the woods. As Stewart returned inside,
she heard gunshots coming from the direction Martin had been
taken. Clark and Harrington then came to her locked back door
and said they would kill her if she said anything. Harrington
was holding a gun at the time. At Harrington's
preliminary hearing, she described the same general sequence
of events with some alterations-for example, she locked her
door before she heard the gunshots, she opened the door when
the defendants returned to her home, and Clark was holding
prosecution's theory of the case was that Stewart had
been cowed into silence by the defendants' threats the
night of the murder. The defense, however, posited a different
aggressor. During cross-examination, Detective Anthony
Abdallah was asked about allegedly threatening comments he
made while interviewing Stewart. He responded: "What I
said was that if you're gonna-if you're gonna not
tell us exactly what happened, and if you're gonna
interfere with this homicide investigation, we'll lock
you up, and I will have to call Social Services and have
'em pick up your kids 'cause I'm not gonna
babysit 'em." (R. 15-6, PageID 802-03)
testimony was critical because no physical evidence connected
Clark to the crime. What physical evidence there was arguably
undercut Stewart's story: the medical examiner testified
that there were no marks on Martin's body consistent with
being beaten or dragged. The only other evidence implicating
Clark was Tammy Wiseman's testimony that Clark told her
to say that she and Stewart were together the night of the
murder-which, according to Wiseman, was not true. The State
spent approximately half of its 14-page closing argument
summarizing and discussing Stewart's testimony. A
toxicology report showing Martin had cocaine in his system
was mentioned in passing, and Wiseman merited a single
paragraph. No other evidence was discussed. The State
returned to Stewart's testimony for the final six pages
of its nine-page rebuttal.
jury found both Clark and Harrington guilty of first-degree
murder, and Clark was sentenced to life imprisonment without
parole. Both defendants moved for a new trial. Clark's
motion was denied, as was his direct appeal. See People
v. Clark, No. 247847, 2005 WL 991619, at *1 (Mich. Ct.
App. Apr. 28, 2005) (per curiam). Harrington's motion was
granted based on misconduct of his trial counsel.
Id. at *1 & n.1. According to Clark's
statement in a prior habeas petition, Harrington was tried
three additional times. See Clark v. Romanowski, No.
08-10523, 2010 WL 3430782, at *9 n.4 (E.D. Mich. Aug. 30,
2010), aff'd, 472 Fed.Appx. 348 (6th Cir. 2012).
Harrington's second and third trials resulted in hung
juries, the fourth in a conviction. Id.
filed several petitions for post-conviction relief, relying
in part on evidence discovered after his trial. Of relevance
here, both Wiseman and Stewart testified in Harrington's
subsequent trials that their statements incriminating Clark
and Harrington were lies. Wiseman testified that she lied
because the Inkster police were harassing her and she wanted
to get out of jail. When Stewart was asked why her story
changed, she explained that she "was forced to tell a
lie" by the Inkster police. "They told me if I
don't tell them the truth that they was going to take me
to jail and they was going to take my kids. And at the time I
was on drugs. Now I want to come clean, I'm not on drugs
no more and I don't know nothing about this murder."
(R. 15-19, PageID 1827) The record contains a series of
recanting affidavits from Stewart, ranging in execution date
from May 2003, just a few months after the trial, to March
also produced a transcript of an early police interview with
Stewart. In it, Detective Abdallah stated,
The faster you talk to us the faster I get your ass home to
your kids. Do you realize you would have been out of here a
couple of hours ago? Because the longer your kids are away
from you, the faster-I mean if you're going to stay here
we're going to call Social Services and have your kids
picked up because you're going to be locked up, okay.
(Id., PageID 1558-59) After this comment, Stewart
volunteered for the first time that she saw Clark at
Martin's house on the evening of the murder.
The Instant Petition
September 2015, Clark filed a pro se motion to file a second
or successive habeas petition. See § 2244
Motion, In re Clark, No. 15-2156 (6th Cir. Sept. 28,
2015) (D.E. 1). He attached an affidavit signed by Kaneka
Jackson on August 10, 2015. The State did not respond to the
petition. See Letter, In re Clark, No.
15-2156 (6th Cir. Oct. 26, 2015) (D.E. 4).
affidavit, Jackson stated that she was taking out the trash
the evening of the murder when she saw Martin and a
six-foot-one-inch, dark-skinned black man walk past her
apartment complex. The tall man was behind Martin, holding a
silver handgun to his back. She did not recognize the man
with the gun, but she saw his face and knew he was not Clark.
As Jackson returned to her apartment, she heard three
gunshots and then saw the man run past her without Martin.
After the body was recovered the next day, Jackson told her
father, "an Inkster detective," what she had seen.
(Martin's murder was investigated by the Inkster Police
Department.) Her father told her "to keep [her] mouth
closed . . . because he would take care of the situation and
he did not want [her] placing [her] life in danger." (R.
1, PageID 38) She explained that Clark "never knew of