McGrowan v. Curtin

Filing 67

MEMORANDUM OPINION and ORDER On Remand Granting 57 Habeas Corpus Relief on the Basis of Brady Violation and Denying the Petition for Writ of Habeas Corpus Relief on Other Grounds. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEMETRIC MCGOWAN,
Petitioner,

Civil No. 2:09-CV-14539
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
JOHN CHRISTIANSEN,

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
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.

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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 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

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McGowan v. Christiansen, 2:09-CV-14539
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. Suppp. 2d 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. 136 S. Ct. 415
(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.
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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 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

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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 (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. 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.
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 (1963) and Giglio v. United States, 405 U.S. 150, 153
(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
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McGowan v. Christiansen, 2:09-CV-14539
period includes the period of petitioner’s arrest and conviction. Lieutenant Davis
was not charged until 2011. On May 13, 2013, Lieutenant Davis pleaded nocontest 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)). When a limited remand is issued by the appellate court, “[t]he mandate
rule ‘compels compliance on remand with the dictates of the superior court and
forecloses relitigation of issues expressly or impliedly decided by the appellate
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court.’” Id. (quoting O’Dell, 320 F. 3d at 679 (internal quotation omitted). “A
district court is bound to the scope of the remand issued by the court of
appeals.” Id. (quoting United States v. Campbell, 168 F. 3d 263, 265 (6th Cir.
1999)). “The scope of a remand is determined by examining the entire order or
opinion, to determine whether and how the court of appeals intended to limit a
remand.” Carter v. Mitchell, 829 F.3d 455, 463 (6th Cir. 2016)(quoting Scott v.
Churchill, 377 F.3d 565, 570 (6th Cir. 2004)).
Although petitioner did not raise a Brady claim in his original pro se
petition, petitioner’s original counsel, Lawrence J. Bunting, filed an amended
petition for writ of habeas corpus, raising a new claim involving newly discovered
evidence that Lieutenant Davis had been charged with several criminal charges
alleging corruption on his part. (See ECF 12, Pg ID 965-66). This amended
petition was later superseded by a second amended petition filed by S. Allen
Early, who replaced Mr. Bunting as counsel. This second amended petition
contained the same claim. (ECF 19, Pg ID 1016-19). Although petitioner
originally raised this claim as a newly discovered evidence claim and not as a
Brady claim, he nonetheless raised a claim pertaining to Lieutenant Davis’
corruption in his first and second amended petitions. The Court declined to
address this claim at the time because it granted petitioner habeas relief on his
claim that counsel’s inaccurate advice concerning petitioner’s sentencing
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McGowan v. Christiansen, 2:09-CV-14539
guidelines caused petitioner to reject a plea bargain. The Sixth Circuit reversed
the conditional grant and remanded the matter to this Court to consider
petitioner’s remaining claims. On remand, this Court did hold the case in
abeyance so that petitioner could return to the state courts to exhaust the claim
as being one under Brady, infra. Respondent did not object at the time to the
Court allowing petitioner to return to the state courts to raise a Brady/Giglio claim
nor has respondent cited to any caselaw that would suggest that it would be
beyond the scope of the remand for this Court to adjudicate petitioner’s claim
involving Lieutenant Davis, even if it is now being advanced under a different
theory.
Respondent alternatively alleges that petitioner’s Brady claim amounts to
a second habeas petition that requires permission from the Sixth Circuit before
he can raise this claim.
An individual seeking to file a second or successive habeas petition must
first ask the appropriate court of appeals for an order authorizing the district
court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A); Stewart v.
Martinez-Villareal, 523 U.S. 637, 641 (1998). Under the Antiterrorism and
Effective Death Penalty Act (AEDPA), a federal district court does not have
jurisdiction to entertain a successive post-conviction motion or petition for writ of
habeas corpus in the absence of an order from the court of appeals authorizing
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the filing of such a successive motion or petition. See Ward v. Wolfenbarger, 323
F. Supp. 2d 818, 825-26 (E.D. Mich. 2004).
Petitioner’s Brady claim does not amount to a successive petition within
the meaning of 28 U.S.C. § 2244(b)(3)(A). When this Court conditionally
granted petitioner habeas relief on his claim that counsel was ineffective with
respect to the plea negotiations, the Court declined to address petitioner’s
remaining claims, including any claims involving Lieutenant Davis. By entering a
conditional writ, which was a final order, and not ruling on petitioner’s remaining
claims, this Court essentially dismissed that claim without prejudice because it
was not ripe. Petitioner never received an adjudication of this claim. Petitioner’s
claim was not ripe and exhausted until he returned to federal court. Petitioner’s
Brady claim should be treated as a continuation of his first petition. Accordingly,
petitioner not required to get authorization to file a “second or successive”
application before his Brady claim can be heard. See In re Salem, 631 F.3d 809,
813 (6th Cir. 2011).
Respondent further claims that petitioner’s Brady claim is barred by the
AEDPA’s statute of limitations because the claim was filed more than one year
after his conviction became final. Respondent does not contend that petitioner’s
original claim involving the newly discovered evidence of Lieutenant Davis’

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corruption was not timely filed when it was raised in Mr. Bunting’s first amended
petition in 2011.
When a habeas petitioner files an original petition within the one-year
deadline, and later presents new claims in an amended petition that is filed after
the deadline passes, the new claims will relate back to the date of the original
petition only if the new claims share a “common core of operative facts” with the
original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005).
Petitioner’s Brady claim is not barred by the one year limitations period
because it shares a common core of operative facts with his earlier timely filed
claim that he had newly discovered evidence of Lieutenant Davis’ corruption
during the time of petitioner’s arrest and prosecution that could have been used
to impeach Lieutenant Davis’ credibility. See Bailey v. Lafler, No. 1:09-CV-460,
2010 WL 4286352, at * 5 (W.D. Mich. Sept. 29, 2010)(report and
recommendation adopted, No. 1:09-CV-460, 2010 WL 4258772 (W.D. Mich. Oct.
22, 2010)(“respondent concedes that the Brady claim is closely connected to
petitioner’s due-process claim, such that the new claim relates back to the timely
filing of this habeas corpus action and is not time-barred.”). This Court will
proceed to address the merits of petitioner’s claim.
Petitioner raised his Brady claim in his second motion for relief from
judgment. The judge denied the claim on the record after oral arguments. In so
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ruling, the judge stated: “I truly do not believe that . . . this jury would have come
back with a different conclusion. I cannot find that, I really cannot find that based
on what has been submitted here.” (Evid. Hr’g Tr., ECF 64-5, Pg ID 1832).
To prevail on his claim, petitioner must show (1) that the state withheld
exculpatory evidence and (2) that the evidence was material either to guilt or to
punishment irrespective of good faith or bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A “reasonable probability is
a probability sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 683 (1985). In Strickler v. Greene, 527 U.S. 263, 281-82
(1999), the Supreme Court articulated three components or essential elements
of a Brady claim: (1) the evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; (2) the evidence
must have been suppressed by the State, either willfully or inadvertently; and (3)
prejudice must have ensued. The rule in Brady “applies to evidence
undermining witness credibility.” Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016).
Evidence is “material when there is any reasonable likelihood it could have
affected the judgment of the jury.” Id. Thus, the test is not whether the jury
would have acquitted had it known seen the suppressed evidence; a
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Due Process violation occurs if the withheld “evidence is sufficient to undermine
confidence in the verdict.” Id. (citing Smith v. Cain, 565 U.S. 73 (2012)). Under
this standard, petitioner can prevail on his Brady claim violation even if “the
undisclosed information may not have affected the jury’s verdict.” Id. at 1006, n.
6.
Respondent initially argues that there was no Brady violation because the
prosecution was unaware of Lieutenant Davis’ corruption at the time of his trial.
Respondent is mistaken. The fact that the Monroe County Prosecutor may have
been unaware of Lieutenant Davis’ illegal activities is not dispositive of whether a
Brady violation occurred nor would it relieve other agents of the State from
disclosing the evidence. Brady’s obligation to disclose applies to exculpatory
evidence that is known only to the police, but withheld from the prosecution. See
Kyles v. Whitley, 514 U.S. 419, 438 (1995); See also Harris v. Lafler, 553 F.3d
1028, 1033 (6th Cir. 2009)(“Brady . . . applies to relevant evidence in the hands
of the police, whether the prosecutors knew about it or not, whether they
suppressed it intentionally or not . . . and whether the accused asked for it or
not.”). “[B]ecause the police are just as much an arm of the state as the
prosecutor, the police inflict the same constitutional injury when they hide,
conceal, destroy, withhold, or even fail to disclose material exculpatory
information.” Moldowan v. City of Warren, 578 F.3d 351, 379 (6th Cir. 2009).
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Petitioner’s case is very close to that of the petitioner in Harris, supra,
where the Sixth Circuit granted habeas relief because the Michigan Court of
Appeals, contrary to the Supreme Court’s holdings, ruled that there was no
Brady violation because the prosecutors were not aware of the explicit and
implicit promises police made to the prosecution’s star witness. Harris, 553 F.3d
at 1033. The Sixth Circuit held that the state’s failure to provide these
statements, which could have been used to impeach the witness, violated Brady.
Id. The Sixth Circuit further concluded that the petitioner in Harris was
prejudiced by the nondisclosure, because the impeachable witness “was the key
witness for the prosecution.” Id.
Lieutenant Davis was the key witness for the prosecution. He was the
officer in charge of the investigation and sat at the prosecution’s table throughout
the trial. (See ECF 7-5, Trial Tr., Pg ID 465). Although the prosecutor may not
have known about Lieutenant Davis’s corrupt activities, such knowledge can be
imputed to the prosecution because Lieutenant Davis was a part of the
prosecution team.
In Arnold v. Secretary, Department of Corrections, 595 F.3d 1324 (11th
Cir. 2010), adopting opinion of Arnold v. McNeil, 622 F. Supp. 2d 1294 (M.D.
Fla. 2009), aff'd and adopted, 595 F.3d 1324 (11th Cir. 2010), the United States
Court of Appeals for the Eleventh Circuit held that crimes committed by a police
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McGowan v. Christiansen, 2:09-CV-14539
detective who was a lead investigator and key witness against a criminal
defendant, although not known by the prosecutor until after the conclusion of
petitioner’s trial, was material exculpatory information that the prosecution was
obligated to disclose to the defendant under Brady. The district court, in its
earlier opinion, reasoned that because the corrupt officer was a part of the
prosecution team, the officer’s knowledge of his own misconduct could be
imputed to the prosecution team as a whole. Arnold v. McNeil, 622 F. Supp. 2d
at 1298, 1315.
This case is also similar to United States v. McClellon, 260 F. Supp. 3d
880, 883–88 (E.D. Mich. 2017), appeal dismissed, No. 17-1703, 2017 WL
4317149 (6th Cir. July 20, 2017), where Judge David M. Lawson of this district
granted a new trial based on a Giglio violation despite the fact that the
prosecutor was unaware of the police officer’s misconduct. In that prosecution
for being a felon in possession of a firearm, a Detroit Police officer testified that
he saw the defendant toss a gun during a pursuit. Id. at 882. The day after this
officer testified, the Detroit Police Department suspended the officer during the
course of an investigation into claims that the officer falsified police reports in
weapons cases. Id. The officer was subsequently criminally charged, but
acquitted. This officer was not the only law-enforcement witness who testified to
seeing the defendant with a gun. Id. at 883. Despite the fact that the
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government was unaware of the investigation, Id. at 884, the court found a Giglio
violation because the officer knew of his own suspension and the pending
investigation into his misconduct and that information undermining his
credibility would damage the case. Id. at 885.
Evidence that Lieutenant Davis had embezzled drugs, money, and
property from drug suspects could have been used to impeach his credibility.
Moreover, evidence that Lieutenant Davis had stolen drugs, money, and
property belonging to drug suspects could have been used by the defense
counsel to explain why he was unable to obtain the jacket that petitioner had
been wearing on the day of the arrest, in order to establish that petitioner was
tased in a manner inconsistent with him reaching for a weapon, as the police
had suggested.
Evidence that Lieutenant Davis was engaged in illegal activities at the time
of petitioner’s arrest and trial would also have been material to the case.
Lieutenant Davis was the key witness against petitioner as well as the officer in
charge of the case. This case was not compelling against petitioner and the
facts were in dispute. Although Lieutenant Davis claimed to have seized three
and one half ounces from petitioner, some of the police paperwork in this case
indicated that only 3½ grams of cocaine was seized from petitioner. (ECF 7-5,
Tr. 12/11/06, pp. 115-116, 124). No scale was recovered from the informant
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Corrina Pierson’s apartment or from petitioner, even though Pierson claimed that
petitioner was going to divide up the 3½ ounces into smaller quantities. (Id., p.
110). Pierson did not actually see petitioner, the cocaine, or gun because she
remained in the bathroom until officers left with petitioner. (Id., p. 193). Pierson
only saw a chunk of cocaine which she described as about the size of a fist on
the table when she came out of the bathroom. (Id., p. 220). While it is true that
Officer Sharon McDonald claimed that Lieutenant Davis seized the cocaine from
petitioner, (Id, p. 101), she herself indicated that she seized a gun from petitioner
at the same time (Id.), suggesting that she may have been more focused on the
gun than the quantity of cocaine seized from petitioner. McDonald’s credibility is
itself was suspect because Lieutenant Davis was her supervisor. (Id., p. 96).
McDonald admitted that some of the reports prepared in this case indicated that
only 3 ½ grams of cocaine were taken from petitioner. Although several
additional police officers were involved with the arrest, none of them actually
witnessed the cocaine being seized from petitioner. (Id., pp. 172-73, 224, 233).
Petitioner, as mentioned in the statement of facts, denied being in possession of
3 and a half ounces of cocaine with the intent to deliver the cocaine, claiming
instead that he only had 3 ½ grams for personal use.
Evidence of Lieutenant Davis’s corruption, embezzlement, and
racketeering would clearly be material to the outcome of this case, either as
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exculpatory evidence or impeachment evidence. At the very least, this evidence
creates a “probability sufficient to undermine confidence in the outcome” of the
verdict. Bagley, 473 U.S. at 683. Although there may be circumstantial evidence
of petitioner’s guilt, “That circumstantial chain of evidence may be compelling,
but it certainly is not overwhelming proof of the [petitioner’s] guilt.” United States
v. McClellon, 260 F. Supp. 3d at 885. Lieutenant Davis’ “testimony is the only
basis that clearly connected the dots between those circumstances to make an
unassailable presentation. If that testimony is placed in serious doubt, then the
case is put into a much different light.” Id. Petitioner should have an opportunity
to present this evidence at a new trial.
Therefore, the Court will order the State of Michigan to either (1) set a new
trial date that is within ninety days of entry of this order, which is to be conducted
in accordance with the conditions stated in this opinion, or (2) release Petitioner
unconditionally.
Because the Court is granting habeas relief on this claim, the Court briefly
addresses petitioner’s remaining claims.
B. Claim # 1. The right to present a defense claim.
Petitioner claims that he was denied his right to present a defense when
the judge refused to allow defense counsel to question the informant in this
case, Ms. Pierson, about her being a prostitute. Petitioner’s counsel wanted to
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elicit this testimony in order to establish that petitioner went to the informant’s
house not to sell drugs, but to engage in commercial sex with the informant.
Petitioner’s counsel’s proposed question was part of petitioner’s defense that he
was not engaged in drug trafficking and was not in possession of the 3 and a
half ounces of cocaine that the police claimed to have seized, but only three and
a half grams of cocaine, which were for personal use.
The Michigan Court of Appeals rejected petitioner’s claim on his appeal of
right:
First, defendant alleges that the trial court erred in refusing to allow
him to question the informant regarding her occupation as a prostitute.
On cross-examination, defense counsel inquired what the informant
did for a living at the time of the charged offenses. She stated that she
did not want to answer. The prosecutor objected based on relevancy
grounds. A discussion was held outside the presence of the jury. In the
discussion, defense counsel alleged that the police officers did not
hear the conversation setting up the drug transaction, contrary to the
trial testimony. He asserted that the informant set up a transaction for
sex rather than drugs. Defense counsel also indicated that he wanted
to question the informant regarding what she was wearing because,
upon information and belief, she was dressed as a “call girl.” The trial
court excluded the testimony based on relevancy grounds. The trial
court also held that the informant was not provided with immunity and
had a right to be free from self-incrimination. The trial court further
stated that defendant’s purpose for visiting the informant’s residence,
whether to engage in sexual acts or to watch football, was irrelevant
with regard to his intent or the reason for having drugs on his person.
Defendant asserts that the exclusion of this line of questioning and
testimony deprived him of a substantial defense and shifted the burden
of proof. We disagree.

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This Court reviews claims regarding the denial of the constitutional
right to present a defense de novo. People v. Kurr, 253 Mich.App. 317,
327, 654 N.W.2d 651 (2002). No person may be deprived of life,
liberty, or property without due process of law. U.S. Const, Ams V,
XIV, § 1; Const 1963, art 1, § 17; People v. Bearss, 463 Mich. 623,
629, 625 N.W.2d 10 (2001). A defendant in a criminal case has the
right to present a defense. US Const, Ams VI, XIV; Const 1963, art 1,
§ 13; Kurr, supra at 326, 654 N.W.2d 651. However, “[i]t is well settled
that the right to assert a defense may permissibly be limited by
‘established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.’”
People v. Toma, 462 Mich. 281, 294, 613 N.W.2d 694 (2000), quoting
Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35
L.Ed.2d 297 (1973).
“The decision whether to admit evidence is within a trial court’s
discretion.” People v. Katt, 468 Mich. 272, 278, 662 N.W.2d 12 (2003).
Evidence that is relevant is admissible. People v. Layher, 464 Mich.
756, 761, 631 N.W.2d 281 (2001); MRE 402. To determine if evidence
is relevant under MRE 401, a reviewing court must examine: (1) the
materiality of the evidence, and (2) “whether the evidence makes a
fact of consequence more or less probable than it would be without the
evidence.” People v. Mills, 450 Mich. 61, 66-67, 537 N.W.2d 909
(1995). A fact is material if it is within the range of litigated matters in
controversy. Id. at 68, 537 N.W.2d 909.
Both the federal and state constitutions provide the witness with a
privilege against self-incrimination. People v. Dyer, 425 Mich. 572,
578, 390 N.W.2d 645 (1986). The trial court may compel the witness
to answer a question only when it is apparent that the testimony will
not incriminate the witness. Id. at 578-579, 390 N.W.2d 645. A
defendant does not have the power to immunize witnesses and cannot
compel a grant of immunity. People v. Lawton, 196 Mich.App. 341,
346, 492 N.W.2d 810 (1992). Testimony is protected against
compelled disclosure when there is even a possibility of incrimination.
Id.
Irrespective of the asserted relevancy of the informant’s occupation,
the right of the witness to be free from self-incrimination must be
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balanced against defendant’s right to a substantial defense. In the
present case, defendant was not deprived of any right to present a
defense by the informant’s failure to answer the question regarding her
occupation. The elements of possession with intent to deliver between
50 and 449 grams of cocaine are: “(1) the defendant knowingly
possessed a controlled substance; (2) the defendant intended to
deliver this substance to someone else; (3) the substance possessed
was cocaine and the defendant knew it was cocaine; and (4) the
substance was in a mixture that weighed between 50 and [449]
grams.” People v. Crawford, 458 Mich. 376, 389, 582 N.W.2d 785
(1998). Intent to deliver need not be established with proof of actual
delivery of narcotics. People v. Wolfe, 440 Mich. 508, 524, 489 N.W.2d
748, amended 441 Mich. 1201, 489 N.W.2d 748 (1992). “An actor’s
intent may be inferred from all of the facts and circumstances, and
because of the difficulty of proving an actor’s state of mind, minimal
circumstantial evidence is sufficient.” People v. Fetterley, 229
Mich.App. 511, 517-518, 583 N.W.2d 199 (1998) (Citations omitted).
Intent to deliver can be inferred from the quantity of narcotics in the
defendant’s possession, the manner in which the narcotics are
packaged, and other circumstances surrounding the arrest. Wolfe,
supra.
In the present case, a police record indicated that three and one-half
grams of cocaine were recovered. That record was countered by other
police documentation and testimony from police officers at trial that he
was found with three and one-half ounces of cocaine. Accordingly,
there was contradictory evidence in the trial record regarding the
amount of drugs recovered from defendant’s person. Moreover, the
quantity of cocaine was not divided, and defendant was not found in
possession of a scale at the time of arrest. Consequently, the defense
had sufficient information to refute the intent to deliver, irrespective of
the informant’s alleged occupation. Therefore, defendant was not
deprived of a substantial defense when the trial court ruled that the
occupation was irrelevant and violated the informant’s right to be free
from self-incrimination. Furthermore, the burden of proof was not
shifted in light of the evidence available to dispute the intent to deliver.
Accordingly, this claim of error is without merit.
People v. McGowan, 2008 WL 723945, at * 1–3.
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McGowan v. Christiansen, 2:09-CV-14539
Just as an accused has the right to confront the prosecution’s witnesses
for the purpose of challenging their testimony, he also has the right to present
his own witnesses to establish a defense. This right is a fundamental element of
the due process of law. Washington v. Texas, 388 U.S. 14, 19 (1967); See also
Crane v. Kentucky, 476 U.S. 683, 690 (1986)(“whether rooted directly in the Due
Process Clause of the Fourteenth Amendment, or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants ‘a meaningful opportunity to present a complete
defense’”)(internal citations omitted). However, an accused in a criminal case
does not have an unfettered right to offer evidence that is incompetent,
privileged, or otherwise inadmissible under the standard rules of evidence.
Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court, in fact, has
indicated its “traditional reluctance to impose constitutional constraints on
ordinary evidentiary rulings by state trial courts.” Crane, 476 U.S. at 689. The
Supreme Court gives trial court judges “wide latitude” to exclude evidence that is
repetitive, marginally relevant, or that poses a risk of harassment, prejudice, or
confusion of the issues. Id.
Moreover, under the standard of review for habeas cases as enunciated in
§ 2254(d)(1), it is not enough for a habeas petitioner to show that the state trial
court’s decision to exclude potentially helpful evidence to the defense was
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McGowan v. Christiansen, 2:09-CV-14539
erroneous or incorrect. Instead, a habeas petitioner must show that the state
trial court’s decision to exclude the evidence was “an objectively unreasonable
application of clearly established Supreme Court precedent.” Rockwell v. Yukins,
341 F. 3d 507, 511-12 (6th Cir. 2003).
Petitioner argues that this Court should review his claim de novo, rather
than under the AEDPA’s standard of review. Petitioner argues that de novo
review is appropriate because the trial court ruled that Ms. Pierson’s occupation
as a prostitute was irrelevant, whereas petitioner argues that the Michigan Court
of Appeals affirmed the exclusion of Ms. Pierson’s status as a prostitute on the
mistaken reliance on a Fifth Amendment right against self-incrimination that
petitioner claims Pierson never invoked.
It is true that when a state court fails to adjudicate a habeas petitioner’s
claim on the merits, federal habeas review is not subject to the deferential
standard contained in § 2254(d) and a federal court is required to review that
claim de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009). However, the
AEDPA deferential review applies “whether or not the state court reveals which
of the elements in a multipart claim it found insufficient, for § 2254(d) applies
when a “claim,” not a component of one, has been adjudicated.” Harrington, 562
at 98. A federal court on habeas review of a state court conviction must review

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McGowan v. Christiansen, 2:09-CV-14539
“the state court’s decision, not the court’s intermediate reasoning.” Davis v.
Carpenter, 798 F.3d 468, 475 (6th Cir. 2015); See also Holland v. Rivard, 800
F.3d 224, 235–36 (6th Cir. 2015)(a habeas petitioner must show that
there was “no reasonable basis for the state court to deny relief,” even if
the state court gave a “bad reason” for its decision because federal
courts are to review the result that the state court reached, not whether its
decision was well-reasoned); Wetzel v. Lambert, 132 S. Ct. 1195, 1199
(2012)(habeas relief is not available “unless each ground supporting the
state court decision is examined and found to be unreasonable under
AEDPA”).
In the present case, the Michigan Court of Appeals clearly adjudicated the
merits of petitioner’s right to present a defense claim. This is not a case where
the appellate court ignored the substance of petitioner’s claim or rejected it on
procedural grounds. At most, the Michigan Court of Appeals affirmed the trial
court’s decision on an alternative basis. It’s not even clear that the Michigan
Court of Appeals’ reasons for rejecting petitioner’s claim were all that different
than the trial judge’s rationale for excluding the evidence, as the Michigan Court
of Appeals acknowledged in its decision that the trial judge excluded the
evidence on relevancy grounds.

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McGowan v. Christiansen, 2:09-CV-14539
A federal habeas court will not disturb a state court’s exclusion of
evidence on the ground of relevancy “unless the relevance and probative value
of such evidence is so apparent and great that excluding the evidence denies
the petitioner the due process of law.” Jones v. Smith, 244 F. Supp. 2d 801, 814
(E.D. Mich. 2003)(internal citations omitted). “The inquiry in reviewing a claim of
improper exclusion of evidence is whether the evidence was rationally
connected to the crime charged and, if its exclusion was so prejudicial as to
deprive the defendant of a fundamentally fair trial.” Id.
This Court cannot conclude that the trial judge’s refusal to order Ms.
Pierson to answer whether she was a prostitute deprived petitioner of a fair trial.
Petitioner was permitted to testify that he went to Ms. Pierson’s house in order to
have sex with her because she was a prostitute. Petitioner testified that he only
brought three and a half grams of cocaine, and not three and a half ounces of
cocaine, to Ms. Pierson’s house. Petitioner testified that this cocaine was for his
personal use and not for sale. Police reports indicated that only three and a half
grams of cocaine were recovered from the house. Testimony from the police
indicated that the cocaine was not divided into packets and that petitioner was
not in possession of a scale at the time of his arrest. Petitioner’s right to present
a defense was not violated by the trial court’s refusal to order Ms. Pierson to
answer whether she was a prostitute because petitioner was able to present his
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McGowan v. Christiansen, 2:09-CV-14539
theory that he only had a small amount of cocaine in his possession for his
personal usage and was at the house to engage in an act of prostitution and not
to sell drugs through his testimony and the testimony of several prosecution
witnesses. See United States v. Lucas, 357 F.3d 599, 606–07 (6th Cir. 2004).

The judge’s ruling was not so egregious that it effectively denied
petitioner a fair trial, in light of the fact that petitioner was not completely
barred from bringing in evidence to establish that he was at Ms. Pierson’s
house to engage in an act of prostitution and not to sell large quantities of
cocaine. See Fleming v. Metrish, 556 F. 3d 520, 535-36 (6th Cir. 2009).
With the quantum of evidence in the record, this Court concludes that the
petitioner was afforded “a meaningful opportunity to present a complete
defense.” Allen v. Howes, 599 F. Supp. 2d 857, 873 (E.D. Mich.
2009)(citing Crane, 476 U.S. at 690 (citation and internal quotations
omitted)). Petitioner is not entitled to relief on his first claim.
C. Claim # 2. The ineffective assistance of trial counsel claim.
Petitioner next claims that trial counsel was ineffective in regards to how
he handled testimony from Lieutenant Davis concerning petitioner’s drug usage
and that petitioner was possibly carrying a gun.

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McGowan v. Christiansen, 2:09-CV-14539
Lt. Davis testified that Det. Cook advised him that petitioner had been
investigated for drugs. (Tr. 12/11/06, p. 144). Defense counsel objected to this
testimony and the trial court sustained the objection and instructed the jury to
disregard the last statement. (Id.). Lt. Davis also testified that he was told
McGowan “was possibly carrying a gun.” (Id., p. 145). There was no objection.
Petitioner argues that his trial counsel was ineffective for failing to move
for a mistrial or for failing to request a stronger curative instruction regarding the
testimony concerning his drug usage. Petitioner also claims that trial counsel
was ineffective for failing to object or move for a mistrial after Lieutenant Davis
testified that petitioner might be carrying a gun.
The Michigan Court of Appeals rejected petitioner’s claim:
Defendant’s ineffective assistance claims of his trial counsel’s failures
with regard to the evidence of past drug investigations of defendant
and the OMNI members’ preparation for the possibility that defendant
would carry a gun are without merit. Although trial counsel admitted at
the Ginther 1 hearing that he was tired and focused on another case,
defendant has not demonstrated a reasonable probability that the
outcome would have been different but for his trial counsel’s
distractions. The comment regarding past drug investigations was
stricken from the record after defense counsel objected. Moreover, in
context, the testimony regarding preparing for the possibility that
defendant may be carrying a gun was not improper. Rather, the
testimony at this trial was seemingly admitted as part of police
procedure and to explain why defendant was “tasered” when he
reached into his pocket. In the presence of police, the informant made
1

People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973)(footnote
original).
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McGowan v. Christiansen, 2:09-CV-14539
a telephone call for three and one-half ounces of cocaine, and the
drugs were presented at trial. Defendant telephoned when he was on
his way to the informant’s apartment with the drugs. When taken into
custody at the apartment, drugs and a gun were found on defendant.
For the reasons stated above, there was substantial evidence of
defendant's guilt presented at trial.
People v. McGowan, 2008 WL 723945, at * 5.
Trial counsel objected to the references to petitioner’s drug use. The
judge sustained the objection and advised the jurors to disregard the testimony.
The judge later instructed the jurors in his final instructions that he had stricken
certain testimony and they were not to consider this excluded evidence in
reaching a decision. (Tr. 12/11/06, p. 314).
The Michigan Court of Appeals did not unreasonably reject petitioner’s
claim that trial counsel was ineffective for failing to move for a mistrial or request
a stronger curative instruction in response to Lieutenant Davis’ testimony
concerning his drug use, as the state court reasonably concluded that the trial
court’s instruction to disregard that testimony was adequate to cure any error.
See Gonzales v. Quarterman, 458 F.3d 384, 396-97 (5th Cir. 2006).
The Michigan Court of Appeals concluded that there was no basis to
object to the references to petitioner being in possession of a gun because this
testimony was proper under Michigan law. Federal habeas courts “‘must defer
to a state court’s interpretation of its own rules of evidence and procedure’ when

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McGowan v. Christiansen, 2:09-CV-14539
assessing a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.
2005)(quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Because the
Michigan Court of Appeals determined that Lieutenant Davis’ testimony that he
had been warned that petitioner might be in possession of a firearm was
admissible under Michigan law, this Court must defer to that determination in
resolving petitioner’s ineffective assistance of counsel claim. See Brooks v.
Anderson, 292 Fed. Appx. 431, 437-38 (6th Cir. 2008); Adams v. Smith, 280
F.Supp.2d 704, 721 (E.D. Mich. 2003). In the present case, the Michigan Court
of Appeals’ determination that petitioner was not denied the effective assistance
of trial counsel because of counsel’s failure to object to the admission of this
“bad acts” evidence was not contrary to, or an unreasonable application of,
clearly established federal law, and thus did not warrant federal habeas relief, in
light of the Michigan Court of Appeals’ finding that this “bad acts” evidence was
admissible under Michigan law. See Pearl v. Cason, 219 F. Supp. 2d 820, 82829 (E.D. Mich. 2002). Petitioner is not entitled to relief on his second claim.
IV. ORDER
IT IS HEREBY ORDERED THAT PETITIONER’S APPLICATION FOR
WRIT OF HABEAS CORPUS IS CONDITIONALLY GRANTED WITH RESPECT
TO THE BRADY VIOLATION. UNLESS THE STATE TAKES ACTION TO
AFFORD PETITIONER A NEW TRIAL WITHIN NINETY DAYS OF THE DATE
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McGowan v. Christiansen, 2:09-CV-14539
OF THIS OPINION, HE MAY APPLY FOR A WRIT ORDERING RESPONDENT
TO RELEASE HIM FROM CUSTODY FORTHWITH.
S/Arthur J. Tarnow
HONORABLE ARTHUR J. TARNOW
SENIOR UNITED STATES DISTRICT JUDGE
Dated:

December 18, 2018

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