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Clark v. Nagy

United States Court of Appeals, Sixth Circuit

August 12, 2019

George Edward Clark, Petitioner-Appellee,
v.
Noah Nagy, Warden, Respondent-Appellant.

          Argued: May 10, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-11959-Victoria A. Roberts, District Judge.

         ARGUED:

          Linus Banghart-Linn, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

          Brandy H. Ranjan, JONES DAY, Columbus, Ohio, for Appellee.

         ON BRIEF:

          Linus Banghart-Linn, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

          Brandy H. Ranjan, Tiffany D. Lipscomb-Jackson, Alexandra L. Schill, JONES DAY, Columbus, Ohio, for Appellee.

          Before: BOGGS, BATCHELDER, and STRANCH, Circuit Judges.

          OPINION

          Jane B. Stranch, Circuit Judge.

         Petitioner 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.

         I. BACKGROUND

         A. Trial and Post-Conviction Proceedings

         In 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.

         At 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 the gun.

         The prosecution's theory of the case was that Stewart had been cowed into silence by the defendants' threats the night of the murder.[1] 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)

         Stewart's 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.

         The 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.

         Clark 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 2013.

         Clark 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.

         B. The Instant Petition

         In 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).

         In her 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 [her] ...


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