The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES F. CLOWER, JR.,
Petitioner, CASE NO. 2:20-CV-10257
v.
PAUL D. BORMAN
JACK KOWALSKI, UNITED STATES DISTRICT JUDGE
Respondent.
_____________________________/
OPINION AND ORDER
(1) DENYING THE STATE’S MOTION TO DISMISS THE PETITION,
(2) GRANTING PETITIONER’S MOTION FOR A STAY,
(3) DIRECTING THE STATE TO FILE ADDITIONAL TRANSCRIPTS,
(4) AMENDING THE CAPTION, AND
(5) CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
Petitioner Charles F. Clower, Jr., a state prisoner in custody of the Michigan
Department Corrections, filed a pro se habeas corpus petition on January 31, 2020.
(ECF No. 1.) The habeas petition challenges Petitioner’s Wayne County, Michigan
convictions for first-degree murder, tampering with evidence, and two firearm
offenses. Currently before the Court are the State’s motion to dismiss the habeas
petition due to Petitioner’s failure to exhaust state remedies for all his claims, and
Petitioner’s motion for a stay and to have his habeas petition held in abeyance while
he exhausts state remedies. Because Petitioner still has an available remedy to
exhaust, the Court will grant Petitioner’s motion for a stay and deny the State’s
motion to dismiss the habeas petition.
I. Background
The charges against Petitioner arose from the fatal shooting of a man in an
abandoned house in Detroit, Michigan. In 2016, following a jury trial in Wayne
County Circuit Court, the jury found Petitioner guilty, as charged, of first-degree,
premeditated murder, Mich. Comp. Laws § 750.316(1)(a), tampering with evidence,
Mich. Comp. Laws § 750.483a(6)(b), felon in possession of a firearm, Mich. Comp.
Laws § 750.224f, and possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. (7/22/16 Trial Tr., ECF No. 8-5, PgID 169.) On
August 9, 2016, the trial court sentenced Petitioner as a fourth habitual offender to
life imprisonment for the murder conviction, 152 months (twelve years, eight
months) to twenty-five years in prison for the tampering conviction, seventy-five
months (six years, three months) to fifteen years for the felon-in-possession
conviction, and two years for the felony-firearm conviction. (ECF No. 8-8, PgID
461-462.)
Petitioner appealed as of right and raised the following claim through counsel:
the trial court committed reversible error and abused its discretion by (1) not
substituting trial counsel or standby counsel during the trial, (2) not adequately
inquiring into Petitioner’s dissatisfaction with assigned counsel and the breakdown
in the attorney-client relationship, (3) allowing Petitioner to represent himself,
beginning mid-trial, even though he was untrained, unprepared, and without
sufficient discovery materials, and (4) unfairly limiting Petitioner’s right to present
a defense and compel the attendance of witnesses. Id. at PgID 580-581. In a pro se
supplemental brief, Petitioner alleged that the prosecutor presented false testimony
and altered evidence, that the evidence was insufficient to support his convictions,
and that the police illegally searched his cell phone. The pro se supplemental brief
was accepted for filing on October 6, 2017. Id. at Pg ID 504.
Petitioner attempted to file an amended pro se supplemental brief in which he
argued that his trial attorneys were ineffective for failing to litigate issues and
impeach two witnesses and that his appellate attorney was ineffective for failing to
raise issues on appeal. Id. at PgID 513-515. The Michigan Court of Appeals,
however, returned the motion to amend and the amended supplemental brief on May
7, 2018, without filing the documents. Id. at PgID 505, 508. Three days later, the
Court of Appeals affirmed Petitioner’s convictions. See People v. Clower, No.
334943, 2018 WL 2165866 (Mich. Ct. App. May 10, 2018).
Petitioner subsequently applied for leave to appeal in the Michigan Supreme
Court. He argued in his pro se application that: (1) the trial abused its discretion by
denying him substitute counsel, allowing him to represent himself, and not
permitting him to recall a witness; (2) the prosecutor suppressed and tampered with
evidence; (4)1 the evidence was not sufficient to support his murder conviction; and
1 There is no claim 3 in the application.
(5) the prosecution tampered with evidence on Petitioner’s phone and also lacked a
search warrant. (ECF No. 8-9, PgID 686-692.)
In the section of the form allotted for raising new issues, Petitioner alleged
that his appellate attorney refused to file motions in his behalf and failed to raise his
claims on appeal. Id. at PgID 693, 699-700. Petitioner also alleged that his three
trial attorneys provided inadequate assistance in that they failed to (1) file the
motions he requested, (2) make an adequate investigation, and (3) seek an
evidentiary hearing so that he could establish his claims. Id. at PgID 697-699. On
December 4, 2018, the Michigan Supreme Court denied leave to appeal because it
was not persuaded to review Petitioner’s claims. See People v. Clower, 503 Mich.
914 (2018).
On January 31, 2020, Petitioner filed his habeas corpus petition. His first
claim alleges that the prosecutor: tampered with evidence; failed to disclose
exculpatory and material evidence; failed to correct false testimony by the star
witness; searched his cell phone without a warrant; deleted text messages and videos
that would have proved his innocence; and altered the messages to establish
Petitioner’s guilt. (ECF No. 1, Pg ID 5.)
Petitioner’s second claim alleges that the trial court abused its discretion and
violated his right to due process by: denying substitution of trial counsel and
allowing him to represent himself mid-trial, even though he was untrained and
unprepared; depriving him of discovery material that he learned about during trial;
denying him the right to present a defense; and not allowing him to recall a witness.
Id. at Pg.ID 7.
The third claim alleges ineffective assistance of trial and appellate counsel.
Petitioner contends that his trial attorneys did not assist him in preparing a defense
or obtaining discovery and waived his right to appellate review of several issues.
Petitioner maintains that appellate counsel failed to raise certain issues and waived
his right to file a motion for new trial before his appeal. Id. at PgID 8.
The fourth and final habeas claim repeats some of the allegations set forth in
Petitioner’s first claim. Petitioner argues that the prosecutor and detectives assigned
to his case suppressed evidence, lacked a warrant to search his cell phone, deleted
text messages and videos that would have proved his innocence, and altered text
messages to show an admission of guilt. Id. at PgID 10.
The State argues in its motion to dismiss the petition that Petitioner failed to
exhaust state remedies for his third claim about trial and appellate counsel. (ECF
No. 9, PgID 797-798.) Thus, according to the State, the habeas petition is a “mixed”
petition of exhausted claims and one unexhausted claim.
On September 2, 2020, Petitioner filed a response to the State’s motion and
his pending motion. He has asked the Court to deny the State’s motion and to hold
his habeas petition in abeyance while he exhausts state remedies. (ECF No. 10, PgID
811; ECF No. 11, PgID 814.)
II. Discussion
The doctrine of exhaustion of state remedies requires state prisoners to give
the state courts an opportunity to act on their claims before they present their claims
to a federal court in a habeas corpus petition. See 28 U.S.C. § 2254(b)(1), (c);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This requirement is satisfied if
the prisoner “invok[es] one complete round of the State's established appellate
review process.” O’Sullivan, 526 U.S. at 845.
To properly exhaust state remedies, a prisoner must fairly present the factual
and legal basis for 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, 414-15 (6th Cir. 2009). The submission of a new claim to a
State's highest court on discretionary review does not constitute fair presentation,
Castille v. Peoples, 489 U.S. 346, 351 (1989), and a federal district court normally
must dismiss a “mixed” petition, that is, one containing both exhausted and
unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).
The record before the Court indicates that Petitioner raised his claims about
the trial court, the prosecutor, and the police in the Michigan Court of Appeals and
in the Michigan Supreme Court. However, when he attempted to amend his pro se
supplemental brief to include a claim about his trial and appellate attorneys, the
Michigan Court of Appeals returned his motion to amend and his amended
supplemental brief. Although Petitioner subsequently raised claims about his trial
and appellate attorneys in the Michigan Supreme Court, that did not satisfy the
exhaustion requirement. See Peoples, 489 U.S. at 351. It may have if there had been
an adjudication on the merits of Petitioner’s claim, see Pitchess v. Davis, 421 U.S.
482, 488 (1975), but the Michigan Supreme Court denied leave to appeal without
adjudicating the merits of Petitioner’s claims.
Petitioner’s third claim is unexhausted, but a dismissal of the habeas petition
while Petitioner pursues state remedies for his unexhausted claim about his former
attorneys could result in a subsequent petition being barred by the one-year statute
of limitations found in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See 28 U.S.C. § 2244(d). As explained in Rhines v. Weber, 544 U.S. 269
(2005),
[a]s a result of the interplay between AEDPA’s 1-year statute of
limitations and Lundy’s dismissal requirement, petitioners who come
to federal court with “mixed” petitions run the risk of forever losing
their opportunity for any federal review of their unexhausted claims. If
a petitioner files a timely but mixed petition in federal district court,
and the district court dismisses it under Lundy after the limitations
period has expired, this will likely mean the termination of any federal
review.
Id. at 275.
To cure this problem, the Supreme Court approved a stay-and-abeyance
procedure, which permits district courts to hold a habeas petition in abeyance while
a petitioner returns to state court to pursue state-court remedies for previously
unexhausted claims. See id. “Once the petitioner exhausts his state remedies, the
district court [can] lift the stay and allow the petitioner to proceed in federal court.”
Id. at 275-76. This stay-and-abeyance procedure normally is available when the
petitioner had good cause for the failure to exhaust his state remedies first in state
court, the unexhausted claims are potentially meritorious, and the petitioner is not
engaged in intentionally dilatory litigation tactics. Id. at 277-78. If the prisoner
satisfies those conditions, the district court should stay, rather than dismiss, the
petition. Id. at 278.
Petitioner alleges that his appellate attorney was ineffective for failing to raise
certain issues on direct appeal. (ECF No. 1, PgID.8.) He does not appear to be
engaged in intentionally delaying tactics, and his unexhausted claims are not plainly
meritless. Accordingly, it would not be an abuse of discretion to stay this case while
Petitioner pursued additional state-court remedies. The Court, therefore, denies the
State’s motion to dismiss (ECF No. 9) and grants Petitioner’s motion to stay this
proceeding and to hold his habeas petition in abeyance (ECF No. 11).
As a condition for this stay, Petitioner shall file a motion for relief from
judgment in the state trial court within sixty (60) days of this order if he has not
already done so. If he is unsuccessful in state court and wishes to return to federal
court, he shall file an amended habeas corpus petition and a motion to re-open this
case within sixty (60) days of exhausting state remedies.
In the meantime, the Court orders the State to file the missing volumes of the
transcript of trial. The state court’s register of actions shows that the trial took place
July 18-22, 2016, but the record in this case includes only the transcripts for July 21,
2016, and July 22, 2016. The Court needs the remaining three volumes of the
transcript of trial (July 18-20, 2016).
One further administrative concern is the caption for this case. The State
pointed out in its motion to dismiss that Mike Brown is the acting warden at the
Kinross Correctional Facility in Kincheloe, Michigan where Petitioner is
incarcerated. (ECF. No. 9 PgID.796 n.1.) Accordingly, the Court orders the Clerk
of Court to amend the docket for this case to show that Mike Brown is the
respondent, because he currently holds Petitioner in custody. The caption for this
case is amended to read: “Charles F. Clower, Jr. v. Mike Brown.”
Finally, the Court hereby closes this case for administrative purposes.
Nothing in this order shall be construed as an adjudication of Petitioner’s claims.
s/Paul D. Borman
PAUL D. BORMAN
Dated: March 5, 2021 UNITED STATES DISTRICT JUDGE