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 

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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 

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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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