McGlown v. Hoffner

Filing 12

Opinion and Order Granting Respondent's 5 Motion for Summary Judgment and Dismissal of the Habeas Corpus Petition, Dismissing the 1 Habeas Petition Without Prejudice, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Sean F. Cox. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEONARD DEE MCGLOWN,
Petitioner,
CASE NO. 15-11624
v.
HONORABLE SEAN F. COX
BONITA HOFFNER,
Respondent.
_____________________________/
OPINION AND ORDER
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
AND DISMISSAL OF THE HABEAS CORPUS PETITION (document no. 5),
DISMISSING THE HABEAS PETITION WITHOUT PREJUDICE,
DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter has come before the Court on petitioner Leonard Dee
McGlown’s pro se habeas corpus petition under 28 U.S.C. § 2254. The pleading
challenges Petitioner’s convictions for first-degree (premeditated) murder, Mich.
Comp. Laws § 750.316(1)(a), conspiracy to commit murder, Mich. Comp. Laws §
750.157a, and possession of a firearm during the commission of a felony (felony
firearm), Mich. Comp. Laws § 750.227b.

The State has filed a motion for

summary judgment and dismissal of the habeas petition on the ground that
Petitioner failed to exhaust state remedies for all his claims. Although Petitioner

opposes the State’s motion, the Court agrees with the State that Petitioner has not
satisfied the exhaustion requirement. Accordingly, the Court will grant the State’s
motion and dismiss the habeas petition without prejudice.
I. Background
The charges against Petitioner and his co-defendants arose from the shooting
of Marcus Newsom in Adrian, Michigan.

The Michigan Court of Appeals

provided the following summary of the facts and history of the case:
According to the prosecution, [Paul Edward Daniel, Leonard Dee
McGlown, and Peter Lamont Daniel], along with codefendant Cordall
Neal, shot the victim in his car at about 9:30 p.m. According to
witness testimony, the victim was driving in a red car when a lightcolored van either slowed or stopped next to the victim’s car at the
intersection of Park Street and College Avenue in Adrian, Michigan.
Gun shots were heard, and the van left the scene immediately. The
victim was found badly injured in his vehicle, which belonged to his
sister, and died shortly thereafter in the hospital from multiple gunshot
wounds. A few minutes after the shooting, defendants were stopped
by police because they were driving in a light-colored van which
matched witnesses’ descriptions of the van involved in the shooting.
Neal was in the driver’s seat, defendant McGlown was in the
passenger seat, and the Daniel defendants were in the back seat.
Later, while retracing the route between the shooting and the location
where defendants were stopped, police recovered two revolvers, a
pistol, and three gloves that had been discarded in the roadway.
Bullets from one of the revolvers were found in the victim’s vehicle,
and bullets from the pistol were found in the victim’s body.
Defendants were subsequently charged and tried for murder. The
victim’s aunt testified that Neal called her after the shooting.
Allegedly, Neal had been trying to shoot the victim’s sister's
boyfriend, Jamal Bradley, because Bradley allegedly robbed Neal’s
grandmother and shot Neal’s uncle. Both the victim and Bradley
frequently drove the victim’s sister’s vehicle, a red car. Neal told the

victim’s aunt that he had paid his twin uncles to kill Bradley.
According to Neal, defendants had shot the victim by mistake because
they thought it was Bradley. Neal told the victim’s aunt that he was
driving and fired no shots.
People v. McGlown, No. 308231, 2014 WL 3844010, at *1 (Mich. Ct. App. Aug.
5, 2014).
On October 26, 2011, Petitioner’s jury found him guilty of first-degree
murder, conspiracy to commit first-degree murder, and one count of felonyfirearm. On November 18, 2011, the trial court sentenced Petitioner to two years
in prison for the felony-firearm conviction, followed by life imprisonment for the
murder and conspiracy convictions.
In an appeal before the Michigan Court of Appeals, Petitioner argued that:
(1) the trial court violated his right to confront the witnesses against him by
admitting a witness’s out-of-court testimony as substantive evidence; (2) the trial
court violated his right to present a defense by recognizing a defense witness’s
Fifth Amendment privilege against self incrimination even though the proposed
questions could not have yielded incriminating answers; (3) the trial court violated
his right to present a defense by precluding all testimony from the defense witness,
rather than requiring the witness to invoke his Fifth Amendment privilege on a
question-by-question basis; (4) the trial court infringed on Petitioner’s right to be
presumed innocent by requiring Petitioner to wear restraints or a taser device
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during trial; and (5) trial counsel was ineffective for failing to request a gunshot
residue test on Petitioner’s clothing. The Michigan Court of Appeals found no
merit in these claims and affirmed Petitioner’s convictions in an unpublished, per
curiam opinion on August 5, 2014. See McGlown, 2014 WL 3844010.
Petitioner raised the same five claims in the Michigan Supreme Court. He
subsequently moved for permission to submit a supplemental brief in which he
contended that he was innocent of first-degree murder and that his trial attorney
was ineffective for not investigating and raising a defense of “mere presence.” On
March 31, 2015, the Michigan Supreme Court granted Petitioner’s motion to file a
supplemental brief, but denied his application for leave to appeal because the court
was not persuaded to review the issues presented to it. See People v. McGlown,
497 Mich. 982; 860 N.W.2d 628 (2015).
On April 30, 2015, Petitioner signed and dated his habeas corpus petition,
and on May 4, 2015, the Clerk of the Court filed the petition. Petitioner alleges as
grounds for relief that:

(1) the trial court violated his right to confront the

witnesses against him by allowing a witness’s prior testimony to be read into the
record; (2) the trial court violated his right to present a defense by recognizing a
defense witness’s Fifth Amendment privilege against self incrimination even
though the proposed questions could not have yielded incriminating answers; (3)

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the trial court violated his right to present a defense by precluding all testimony
from the defense witness, rather than requiring the witness to invoke his Fifth
Amendment privilege on a question-by-question basis; (4) the trial court infringed
on his right to be presumed innocent by requiring him to wear restraints or a taser
device during trial; (5) trial counsel was ineffective for failing to request a gunshot
residue test on Petitioner’s clothing; (6) the State’s highest court erred reversibly
by denying his motion to remand for a hearing on his claim about trial counsel; and
(7) he is innocent of first-degree murder, and trial counsel was ineffective for
failing to conduct an investigation on a defense of “mere presence.”
The State argues in its motion for summary judgment and dismissal of the
petition that Petitioner failed to exhaust state remedies for his seventh claim.
Petitioner replies that he satisfied the exhaustion requirement by raising all his
claims in the Michigan Supreme Court.
II. Analysis
A. Summary Judgment and the Exhaustion Requirement
The Court must “grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the responsibility
for “identifying those parts of the record that demonstrate the absence of any

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genuine issue of material fact.” Modowan v. Warren, 578 F.3d 351, 374 (6th Cir.
2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The State’s motion for summary judgment and dismissal of the habeas
petition is based on 28 U.S.C. § 2254(b)(1), which requires state prisoners to
present their claims to the state courts before raising the claims in a federal habeas
corpus petition. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion
requirement is satisfied if a prisoner invokes one complete round of the state’s
established appellate review process, including a petition for discretionary review
to a state supreme court when that review is part of the state’s ordinary appellate
review procedure. Id. at 845, 847. Thus, to properly exhaust state remedies, a
habeas petitioner must fairly present each of his claims to the state court of appeals
and to the state supreme court before raising the claims in a federal habeas corpus
petition. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). Exceptions to the
exhaustion requirement exist when “there is an absence of available State
corrective process,” 28 U.S.C. § 2254(b)(1)(B)(i), or when “circumstances exist
that render such process ineffective to protect the rights of the applicant,” 28
U.S.C. § 2254(b)(1)(B)(ii).
B. Application

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Petitioner exhausted state remedies for his first five claims by raising those
claims in the Michigan Court of Appeals and in the Michigan Supreme Court on
direct appeal. Petitioner did not raise his sixth claim in any state court, and he
raised his seventh claim only in the Michigan Supreme Court, not the Michigan
Court of Appeals.
Petitioner lacks an effective state remedy for his sixth claim regarding the
Michigan Supreme Court’s denial of his motion for a remand, because the time for
seeking reconsideration of the Michigan Supreme Court’s order has expired. See
Mich. Ct. R. 7.311(F)(1) and (G)(requiring a party to move for rehearing or
reconsideration of a supreme court opinion or order within twenty-one days after
the opinion or order is filed). Furthermore, if Petitioner attempted to raise his sixth
claim in a motion for relief from judgment, the state trial court and the Michigan
Court of Appeals would have no authority to overturn the Michigan Supreme
Court’s decision not to remand Petitioner’s case for an evidentiary hearing. The
Court therefore deems the sixth claim exhausted.
As for Petitioner’s seventh claim regarding trial counsel’s failure to
investigate and raise a “mere presence” defense, there is an available state remedy
to exhaust. Petitioner can file a motion for relief from judgment in the state trial
court pursuant to Subchapter 6.500 of the Michigan Court Rules. If the trial court

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denies his motion, he may apply for leave to appeal in the Michigan Court of
Appeals, see Mich. Ct. Rule 6.509(A), and in the Michigan Supreme Court, see
Mich. Ct. Rule 7.303(B)(1).
Petitioner maintains that he exhausted state remedies for his seventh claim
by presenting it to the Michigan Supreme Court, which granted him permission to
raise the claim. The United States Supreme Court, however, has stated that the
submission of a new claim to a state’s highest court on discretionary review does
not satisfy the exhaustion requirement. Castille v. Peoples, 489 U.S. 346, 351
(1989).
Petitioner nevertheless contends that he is prevented from raising his seventh
claim in a motion for relief from judgment because Michigan Court Rule
6.508(D)(2) prohibits state courts from granting relief from judgment if the motion
alleges grounds for relief which were decided against the defendant in a prior
appeal.1 Petitioner contends that, if he raised his seventh claim in a motion for
relief from judgment now, the trial court would reject the claim under Rule
6.508(D)(2) on the basis that the Michigan Supreme Court already decided the
issue against him.

1

An exception exists if “the defendant establishes that a retroactive change in the law
has undermined the prior decision.” Mich. Ct. R. 6.508(D)(2).
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While it is true that the Michigan Supreme Court permitted Petitioner to
supplement his application for leave to appeal with his claim about trial counsel’s
failure to raise a “mere presence” defense, the court did not adjudicate the merits of
the claim. Instead, the court merely denied leave to appeal because it was not
persuaded to review Petitioner’s claim or any of the other issues he presented to
the court. As succinctly explained in Stokes v. Scutt, 527 F. App’x 358 (6th Cir.
2013),
“Rule 6.508(D)(2) does not bar claims raised for the first time in a
direct appeal to the Michigan Supreme Court where the Supreme
Court has denied the application for leave to appeal.” Lamb v. Jones,
No. 03–73587, 2005 WL 1378762 (E.D. Mich. June 2, 2005) (citing
People v. Shook, No. 233346, 2002 WL 31379664, at *2 (Mich. Ct.
App. Oct. 22, 2002)).
Id. at 366; see also Skinner v. McLemore, 425 F. App’x 491, 495 (6th Cir. 2011)
(stating that, while Rule 6.508(D)(2) would apply to any claims that Skinner raised
on direct appeal and in his motion for relief from judgment, the rule would not
apply to claims that he failed to raise in the Michigan Court of Appeals on direct
appeal and attempted to raise for the first time in the Michigan Supreme Court,
which declined to entertain his appeal). Thus, Petitioner has an available state
remedy to exhaust for his seventh claim.
In light of Petitioner’s unexhausted seventh claim, the habeas petition is a
“mixed” petition of exhausted and unexhausted claims. A federal court ordinarily
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“must dismiss such ‘mixed petitions,’ leaving the prisoner with the choice of
returning to state court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims to the district court.” Rose v.
Lundy, 455 U.S. 509, 510 (1982). In the alternative, a federal court may “stay the
petition and hold it in abeyance while the petitioner returns to state court to exhaust
his previously unexhausted claim[].

Once the petitioner exhausts his state

remedies, the district court [can] lift the stay and allow the petitioner to proceed in
federal court.” Rhines v. Weber, 544 U.S. 269, 275-76 (2005).
Although a federal court also can deny a habeas petition on the merits,
“notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State,” 28 U.S.C. § 2254(b)(2), the Court is unable to say at this
time whether the habeas petition can be denied despite Petitioner’s failure to
exhaust state remedies for all his claims. Furthermore, Petitioner has not offered to
dismiss his unexhausted seventh claim, and he asserts that he does not want his
case stayed so that he can pursue additional state remedies. Instead, he wants the
Court to proceed with his case and adjudicate all his claims.
As noted above, however, a federal district court ordinarily may not
adjudicate a “mixed” petition of exhausted and unexhausted claim. Rhines, 544
U.S. at 273. The Court therefore concludes that the State is entitled to judgment in

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its favor. Accordingly, the State’s Motion for Summary Judgment and Dismissal
of the Habeas Petition [document no. 5] is GRANTED, and the Petition for Writ
of Habeas Corpus [document no. 1] is DISMISSED without prejudice.
III. Denial of a Certificate of Appealability
and Denial of Leave to Appeal In Forma Pauperis
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition.
Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here,
the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner clearly has not exhausted state remedies for one of his claims.
Therefore, reasonable jurists would not find it debatable whether the Court’s
procedural ruling is correct. Accordingly, the Court declines to issue a certificate
of appealability, and because an appeal could not be taken in good faith, the Court
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also declines to grant leave proceed in forma pauperis on appeal. 28 U.S.C. §
1915(a)(3).
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: September 2, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 2, 2016, by electronic and/or ordinary mail.
S/Shawna C. Burns
Case Manager Generalist

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