GEORGE EDWARD CLARK, Petitioner-Appellee, v. NOAH NAGY, Warden, Respondent-Appellant.
No. 18-1885
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: May 10, 2019; Decided and Filed: August 12, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b); File Name: 19a0192p.06
Before: BOGGS, BATCHELDER, and STRANCH, Circuit Judges.
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.
COUNSEL
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.
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
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
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 F. App‘x 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
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
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] existence as a witness” and that she came forward because, “prior to [her] father‘s passing, [she] knew that nothing had been done to identify the actual killer of Mich[ae]l Martin.” (Id., PageID 39)
A panel of our court held that the allegations in Jackson‘s affidavit made a prima facie showing of satisfying AEDPA‘s standards for successive habeas petitions because they “supplie[d] ‘sufficient allegations’ together with ‘some documentation’ to warrant a fuller exploration in the district court.” In re Clark, No. 15-2156, 2016 WL 11270015, at *3 (6th Cir. Mar. 28, 2016) (order) (quoting In re McDonald, 514 F.3d 539, 544 (6th Cir. 2008)). If Jackson‘s allegations were proven, the affidavit suggested that the police and prosecutor withheld information “in violation of Brady v. Maryland, 373 U.S. 83 (1963).” Id. We therefore authorized the filing of a successive habeas petition. See id. Clark returned to the district court, filed a pro se petition, and moved to stay the proceedings while he exhausted the Brady claim.
Clark then filed a state court motion for relief from judgment pursuant to
II. ANALYSIS
On appeal, the State makes two central arguments: (1) Clark‘s Brady claim could not be decided without an evidentiary hearing, and (2) Clark cannot satisfy AEDPA‘s requirements to grant a second or successive habeas petition.
As a preliminary matter, we note that after the notice of appeal was filed, the district court held a hearing related to Clark‘s motion to be released on bond pending appeal. In their briefs, the parties do not reference that hearing or make any arguments premised on testimony elicited there. This approach reflects the normal rule that the appellate record consists only of the evidence before the district court at the time of its ruling. See
A. Statutory Context
AEDPA provides that a second or successive habeas application filed by a state prisoner pursuant to
shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
After an appellate court authorizes filing,
B. The Brady Violation
Our analysis begins with the question of “constitutional error.”
The standard of review applicable to a
As to the first element, Clark‘s Brady claim hinges on Jackson‘s undisclosed eyewitness account identifying a different murderer. “[A] positive identification of different suspects by an eyewitness to the crime” is undoubtedly the sort of favorable evidence contemplated by Brady. Jamison v. Collins, 291 F.3d 380, 389 (6th Cir. 2002). The State concedes as much but adds a caveat: “if the Jackson affidavit is true.” But this first element asks only which party the evidence favors. The State does not cite any cases limiting the “favorable” category to evidence that is ultimately deemed credible. To the contrary, “[w]ithholding knowledge of a second suspect conflicts with the Supreme Court‘s directive that ‘the criminal trial, as distinct from the prosecutor‘s private deliberations, [be preserved] as the chosen forum for ascertaining the truth about criminal accusations.‘” Gumm v. Mitchell, 775 F.3d 345, 364 (6th Cir. 2014) (second alteration in original) (quoting United States v. Jernigan, 492 F.3d 1050, 1056–57 (9th Cir. 2007) (en banc)). An eyewitness statement exculpating Clark favors him, even if the State or the factfinder does not believe it.
The prejudice analysis is similarly straightforward. Brady prejudice asks whether, if the suppressed evidence had been disclosed, there would have been a “reasonable probability of a different result.” Banks, 540 U.S. at 699 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). As the Supreme Court has emphasized,
the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government‘s evidentiary suppression “undermines confidence in the outcome of the trial.”
“a petitioner who proves a Brady violation demonstrates cause and prejudice to excuse procedural default of the Brady claim.” Brooks v. Tennessee, 626 F.3d 878, 891 (6th Cir. 2010).
Kyles, 514 U.S. at 434 (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). Jackson‘s eyewitness identification of a suspect other than Clark squarely contradicts the one piece of evidence linking Clark to this crime: Stewart‘s testimony. “Considerable authority from the Supreme Court and our court indicates that a defendant suffers [Brady] prejudice from the withholding of favorable impeachment evidence when the prosecution‘s case hinges on the testimony of one witness.” Harris v. Lafler, 553 F.3d 1028, 1034 (6th Cir. 2009) (collecting cases). The same is necessarily true when the withheld evidence is an eyewitness identification directly contradicting the State‘s lone witness. That conclusion is only strengthened where, as here, the State‘s witness subsequently recanted.
But the analysis of the second element, suppression, is more complex. In many Brady cases, suppression is not contested at all—often because police or prosecutors later produced the exculpatory information. See, e.g., Gumm, 775 F.3d at 361 (exculpatory information included the officers’ tip sheets and investigation notes); Sawyer, 299 F.3d at 609 (exculpatory information obtained in a Freedom of Information Act request). But on these unusual facts, the only evidence that the police knew about Jackson‘s identification is her statement that she told her father, “an Inkster detective,” about “the chain of events that [she] witnessed.” If Jackson did not tell her father what she saw, then the State could not have suppressed her evidence. Jackson‘s credibility is therefore critically important as to this second element. The commonly accepted method to determine whether a witness is telling the truth is to hold an evidentiary hearing. See Pola v. United States, 778 F.3d 525, 535 (6th Cir. 2015) (remanding for an evidentiary hearing because, “[a]lthough district courts are usually in the best position to determine whether witnesses are credible, when the decision to conduct a
Clark argues that an evidentiary hearing is unnecessary for two reasons. First, he submits that the State waived an evidentiary hearing by arguing below that the district court should deny Clark‘s hearing request without a hearing. But the State argued in the alternative that “an evidentiary hearing where Ms. Jackson will be subject to cross-examination would be an option.” The State did not waive (or forfeit) its fallback position by emphasizing its most desired outcome. Cf. Timbs v. Indiana, 139 S. Ct. 682, 690 (2019) (considering the merits of a “fallback” argument).
Second, Clark argues that his is the sort of unusual case that does not require a hearing. Habeas relief may sometimes be granted without an evidentiary hearing. See
In the present case, the State has known of Jackson‘s affidavit since 2015, when Clark moved to file his successive petition. If the State believed that the signatures on the affidavit were not genuine—a possibility the State raised in its initial brief and withdrew on reply—it had three years in which to produce an affidavit from the real Kaneka Jackson or the notary public. It did not do so. It likewise had three years to uncover evidence that Clark influenced Jackson‘s testimony or that Jackson was not a reliable affiant. The State‘s failure to produce evidence calling Jackson‘s affidavit into question counsels against holding an evidentiary hearing. On the other hand,
A remand for an evidentiary hearing is therefore necessary to determine whether Clark‘s Brady claim can succeed.
C. AEDPA Requirements
If this case were on direct appeal, our analysis would end here. But this is a successive habeas petition, subject to the strictures of AEDPA. Because Clark‘s claim relies on newly discovered evidence, and not a new rule of constitutional law, AEDPA requires that he make two showings to avoid dismissal: (1) “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and (2) “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”
As a general matter, “[w]here there is a factual dispute, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner‘s claims.” Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013) (alteration in original) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)).4 This obligation is not triggered, however, if the allegations “are contradicted by the record, inherently incredible, or conclusions rather than statements of facts.” Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). And in a petition governed by
A district court‘s decision denying a hearing is reviewed for abuse of discretion. See id. at 468; Huff, 734 F.3d at 607. The few cases reviewing a district court‘s decision to hold a
hearing suggest our review is at least as deferential, if not more so. For example, in Sowell v. Bradshaw, even though we reversed the district court‘s grant of habeas relief, we rejected the challenge to the hearing itself, reasoning that the district court “has inherent authority to hold an evidentiary hearing even if [the] petitioner is not entitled to one.” 372 F.3d 821, 830 (6th Cir. 2004). The State, however, asks us to declare a hearing unnecessary as a matter of law—in effect, to claw back a determination
1. Due Diligence
AEDPA first requires Clark to exercise “due diligence.”
Clark‘s motion to file a successive petition was filed within six weeks of the execution of Jackson‘s affidavit in August 2015. The State does not argue that a six-week gap runs afoul of the due-diligence requirement. Cf.
2. Evidentiary Burden
The next question is whether Jackson‘s identification, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”
We begin by summarizing “the evidence as a whole.” Id. Because no physical evidence linked Clark to the crime, the State‘s case hinged on Stewart‘s statements from the preliminary hearings. The reliability of those statements came into question at trial: Stewart refused to verify her prior statements; inconsistencies in those statements were highlighted; the medical examiner testified that there were no marks on Martin‘s body consistent with his being beaten or dragged as Stewart described; and Detective Abdallah testified that he told Stewart “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 803) Stewart‘s description, however, garnered some support from Wiseman‘s testimony that Clark told her to lie and say that she and Stewart were together the night of the murder.
During subsequent trials of Clark‘s co-defendant, Harrington, both Wiseman and Stewart testified that their incriminating statements were lies told due to pressure
Because I told [the police] I didn‘t know nothing about the murder. They kept on asking me questions and kept on, kept on, kept on. I told them I didn‘t know nothin’ about the murder. So they kept on cussing me out and telling me to tell them the truth. I told them I don‘t know nothing about this murder. I told them that I had kids. I don‘t know nothin‘. 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 1826–27) Clark has also produced a series of recanting affidavits from Stewart, executed over a ten-year period between 2003 and 2013. The State responds that a reasonable juror could believe these recantations were motivated by Clark and Harrington‘s death threats the night of the murder, pointing out that Harrington was ultimately convicted despite the recantations—albeit in his fourth trial. See Clark, 2010 WL 3430782, at *8–9 & n.4; Oral Arg. at 1:50–2:11, Clark v. Nagy, No. 18-1885 (6th Cir. May 10, 2019).
Against this body of evidence, Clark presents Jackson‘s new eyewitness account. In her affidavit, Jackson states that, the night of the murder, she saw a tall, dark-skinned black man walking the victim toward the woods, pressing a handgun to his back, just before she heard gunshots. Though she did not recognize the tall man, she knew he was not Clark. Jackson‘s description of events, if true, exonerates Clark.
AEDPA asks whether Jackson‘s identification, “if proven and viewed in light of the evidence as a whole,”
The question that remains is whether there is a “clear and convincing” reason to believe Jackson‘s identification over Stewart‘s—a reason that “no reasonable factfinder would” overlook. See
On the other hand, we have no basis to conclude that “an evidentiary hearing would only confirm” Jackson‘s story. Sawyer, 299 F.3d at 612. It is therefore well within the district court‘s discretion to hold an evidentiary hearing and seek that answer.
The State disagrees, arguing that we should find “persuasive” the state court‘s analysis rejecting Clark‘s petition under Michigan‘s standards for successive motions. AEDPA requires us to defer to a state court‘s resolution of “any claim that was adjudicated on the merits in State court proceedings” and to presume correct a state court‘s “determination of a factual issue.”
The state court held no hearings and made no factual findings. Instead, it resolved a mixed question of law and fact: whether these circumstances satisfied a Michigan legal standard. See Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963) (“By ‘issues of fact’ we mean to refer to what are termed basic, primary, or historical facts . . . . So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.“). In performing our de novo review, we do not defer to a state court‘s application of a Michigan legal standard. And even if the state court decision were considered, it would provide little assistance, as Michigan‘s standard contains no “if proven” language comparable to AEDPA‘s, see People v. Cress, 664 N.W.2d 174, 182 (Mich. 2003), and the state court did not limit its consideration to the evidence “left uncontroverted” by the new allegations, as we do, see Keith, 551 F.3d at 559.
The State also argues that because it is “possible” that “at least one juror would reject Jackson‘s testimony as not credible,” AEDPA‘s demanding standard cannot be met. This argument sits uneasily with
For all these reasons, the district court would not abuse its discretion by holding an evidentiary hearing to inquire into whether Jackson‘s testimony is credible enough to carry Clark‘s burden under AEDPA.
D. Motion to Remand
At the beginning of appellate proceedings, the State filed a motion to remand
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s decision granting habeas relief and REMAND the case for further proceedings consistent with this opinion. The State‘s motion to remand is DENIED as moot.