McGowan v. Christiansen, Civil No. 2:09-CV-14539

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtHONORABLE ARTHUR J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE
Citation353 F.Supp.3d 662
Decision Date18 December 2018
Docket NumberCivil No. 2:09-CV-14539
Parties Demetric MCGOWAN, Petitioner, v. John CHRISTIANSEN, Respondent

353 F.Supp.3d 662

Demetric MCGOWAN, Petitioner,
v.
John CHRISTIANSEN, Respondent,

Civil No. 2:09-CV-14539

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

Signed December 18, 2018


353 F.Supp.3d 666

Colleen P. Fitzharris, Jessica Lynn Lefort, Loren E. Khogali, Federal Defender Office, Detroit, MI, for Petitioner.

Mark G. Sands, Andrea M. Christensen-Brown, Bruce H. Edwards, Cheri L. Bruinsma, Linus R. Banghart-Linn, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER ON REMAND GRANTING HABEAS CORPUS RELIEF ON THE BASIS OF BRADY VIOLATION AND DENYING THE PETITION FOR WRIT OF HABEAS CORPUS RELIEF ON OTHER GROUNDS

HONORABLE ARTHUR J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE

This matter is on remand from the United States Court of Appeals for the Sixth Circuit. Petitioner, through counsel Colleen P. Fitzharris of the Federal Defender Office, seeks habeas relief pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for possession with intent to distribute 50-450 grams of cocaine, felony firearm, felon in possession of a firearm, carrying a concealed weapon, and being a third felony habitual offender. Petitioner was denied his Fourteenth Amendment right to due process by the suppression of exculpatory evidence, the Court GRANTS the petition for writ of habeas corpus. The Court denies petitioner's remaining claims.

I. Background

Petitioner was convicted following a jury trial in the Monroe 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 Wagner v. Smith , 581 F.3d 410, 413 (6th Cir. 2009) :

Police received an anonymous tip of drug use at an apartment, received consent from the resident to conduct a search, and discovered drugs in the apartment. The apartment occupant was on parole and agreed to arrange a purchase for three and one-half ounces of cocaine from her supplier, defendant. Defendant called the occupant turned informant when he was on his way with
353 F.Supp.3d 667
the drugs. When he arrived, defendant was arrested carrying three and one-half ounces of cocaine and a gun. Conversely, defendant claimed that he merely carried three and one-half grams of cocaine. Defendant asserted that he did not intend to deliver the cocaine, but rather, it was for his own personal use. He further testified that he came to visit the informant for commercial sex.

People v. McGowan , No. 275781, 2008 WL 723945, * 1 (Mich.Ct.App. March 18, 2008).

Petitioner's conviction was affirmed on appeal. Id., lv. den. 482 Mich. 1030, 769 N.W.2d 202 (2008).

Petitioner filed his original petition for writ of habeas corpus in 2009. After being permitted to amend the petition, the case was held in abeyance to permit petitioner to return to the state courts to exhaust additional claims.

Petitioner filed a post-conviction motion for relief from judgment with the trial court, which was denied. People v. McGowan , No. 06-35201-FH (Monroe County Circuit Court, January 20, 2012). The Michigan appellate courts denied petitioner leave to appeal. People v. McGowan , No. 308520 (Mich.Ct.App. August 24, 2012); lv. den. 493 Mich. 967, 829 N.W.2d 223 (2013).

On August 27, 2013, petitioner, through his new counsel, S. Allen Early, filed an amended petition for writ of habeas corpus.

This Court granted the petition for writ of habeas corpus, finding that petitioner was denied the effective assistance of trial counsel when his attorney gave him, before trial, inaccurate advice that the sentencing guidelines range after trial would be 45–93 months (3 3/4 years–8 3/4 years) when in fact it was 78–195 month (6 1/2 years–16 1/4 years), which caused petitioner to reject the prosecutor's plea bargain offer and receive a much greater sentence after being convicted at trial, namely, 195 months (16 years, 3 months) to forty years in prison. McGowan v. Burt , No. 43 F.Supp.3d 761 (E.D. Mich. 2014).

The Sixth Circuit reversed the Court's decision. The Sixth Circuit also remanded the matter to this Court for consideration of petitioner's remaining claims. McGowan v. Burt , 788 F.3d 510 (6th Cir. 2015) ; cert den. ––– U.S. ––––, 136 S.Ct. 415, 193 L.Ed.2d 328 (2015).

The Court reopened the case to the Court's active docket. The Court granted Mr. Early's request to withdraw as counsel and appointed the Federal Defender Office to represent petitioner. The parties filed supplemental briefs. The Court subsequently granted petitioner's motion to hold the petition in abeyance so that he could properly exhaust his third claim.

Petitioner filed a second motion for relief from judgment in the trial court. The judge denied the motion after conducting oral arguments on the motion. (Tr. 6/30/17, pp. 16-20, ECF 64-5, Pg ID 1829-33).

The Court subsequently granted petitioner's motion to reopen the petition. Petitioner seeks habeas relief on the following grounds:

I. Mr. McGowan was deprived of his Sixth Amendment right to present a complete defense.

II. The state court's decision to reject Mr. McGowan's claim of ineffective assistance of counsel at trial was based on an unreasonable application of clearly established federal law.

III. Mr. McGowan was deprived of his right to due process because the prosecution violated Brady/Giglio by withholding information bearing on the credibility of its star police witness, who was later charged and convicted with racketeering
353 F.Supp.3d 668
for stealing and reselling seized evidence.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor , 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409, 120 S.Ct. 1495. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11, 120 S.Ct. 1495.

III. Discussion

A. Claim # 3. The Brady/Giglio claim.

Petitioner claims that the prosecutor or the police violated Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States , 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) by withholding or failing to disclose that the officer in charge of the case, Lieutenant Luke Davis, systematically embezzled money and property seized from drug suspects between March of 2006 and December of 2008. This time period includes the period of petitioner's arrest and conviction. Lieutenant Davis was not charged until 2011. On May 13, 2013, Lieutenant Davis pleaded no-contest to racketeering in the Monroe County Circuit Court. (See Petitioner's Exhibit B, ECF 57-2, Pg ID 1595-98). Petitioner argues that this evidence of corruption on the part of Lieutenant Davis in the performance of his duties would have affected the credibility of the prosecution witnesses and undermines confidence in the verdict. The Court grants relief on this claim.

Respondent initially argues that this Court should not entertain this claim because it is beyond the scope of the remand order from the Sixth Circuit, in which the Sixth Circuit ordered this Court to consider petitioner's pretermitted claims. Respondent argues that petitioner's original and first amended habeas petition did not contain any Brady claim and thus cannot be considered on remand.

"A remand directing a specific, narrow course of action is fairly considered a limited remand." Hargrave-Thomas v. Yukins , 450 F.Supp.2d 711, 721 (E.D. Mich. 2006) (citing United States v. O'Dell , 320 F.3d 674, 680–81 (6th Cir. 2003) ).

353 F.Supp.3d 669

When a limited remand is issued by the appellate court, "[t]he mandate rule ‘compels compliance on remand with the dictates of the...

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2 practice notes
  • Kelley v. Burton, Civil No. 2:18-CV-11161
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • May 1, 2019
    ...team who was in charge of the investigation and actually sat at the table with the prosecution at trial. See McGowan v. Christiansen , 353 F.Supp.3d 662 (E.D. Mich. 2018).Petitioner's case is identical to the petitioner's case in McGowan . Detective Ferguson was the officer in charge of the......
  • Marion v. Woods, CIVIL 2:12-CV-13127
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 19, 2021
    ...or successive claim for purposes of § 2244(b). See In re Salem, 631 F.3d 809, 813 (6th Cir. 2011); See also McGowan v. Christiansen, 353 F.Supp.3d 662, 669-70 (E.D. Mich. 2018)(Petitioner's Brady claim did not amount to second or successive habeas petition for which he was required to obtai......
2 cases
  • Kelley v. Burton, Civil No. 2:18-CV-11161
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • May 1, 2019
    ...team who was in charge of the investigation and actually sat at the table with the prosecution at trial. See McGowan v. Christiansen , 353 F.Supp.3d 662 (E.D. Mich. 2018).Petitioner's case is identical to the petitioner's case in McGowan . Detective Ferguson was the officer in charge of the......
  • Marion v. Woods, CIVIL 2:12-CV-13127
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 19, 2021
    ...or successive claim for purposes of § 2244(b). See In re Salem, 631 F.3d 809, 813 (6th Cir. 2011); See also McGowan v. Christiansen, 353 F.Supp.3d 662, 669-70 (E.D. Mich. 2018)(Petitioner's Brady claim did not amount to second or successive habeas petition for which he was required to obtai......

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