United States District Court, W.D. Michigan, Southern Division
REPORT & RECOMMENDATION
S. CARMODY U.S. MAGISTRATE JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Dale Allen Betlem, Sr. is
incarcerated with the Michigan Department of Corrections at
the Carson City Correctional Facility (DRF) in Carson City,
Montcalm County, Michigan. On October 9, 2014, a Chippewa
County Circuit Court jury found Petitioner guilty of one
count of third-degree criminal sexual conduct (CSC 3), Mich.
Comp. Laws § 750.520d(1)(a). On November 12, 2014, the
court sentenced Petitioner to a prison term of 12 to 20
April 4, 2018, Petitioner filed his habeas corpus petition.
Under Sixth Circuit precedent, the application is deemed
filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002). Petitioner placed his petition in the prison
mailing system on April 4, 2018. (Pet., ECF No. 1,
petition raises eight grounds for relief, as follows:
I. THE TRIAL COURT ABUSED [I]TS DISCRETION WHEN IT DENIED
[PETITIONER'S] MOTION TO DISMISS FOR FAILURE TO BRING THE
INCARCERATED [PETITIONER] TO TRIAL WITHIN 180 DAYS AND ALSO
DENIED HIM HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
II. [PETITIONER] WAS DENIED DUE PROCESS WHERE THE STATE HAD
NO JURISDICTION TO ISSUE ARREST WARRANT WHERE THE 10 YEAR
STATUTE OF LIMITATIONS HAD EXPIRED.
III. [PETITIONER] WAS DENIED DUE PROCESS WHERE THERE WAS NO
PROBABLE CAUSE TO ARREST WITHOUT SEARCH WARRANT FOR THE
PREGNANCY OF TRISHA BETLEM.
IV. [PETITIONER'S] CONVICTION AND SENTENCE SHOULD BE
VACATED BECAUSE THE PROSECUTION VIOLATED HIS CONSTITUTIONAL
RIGHT TO SPEEDY TRIAL.
V. TRIAL COUNSEL WAS INEFFECTIVE THROUGHOUT TRIAL WHICH
DEPRIVED [PETITIONER] OF A DEFENSE IN VIOLATION OF HIS
FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COUNSEL AND TO
PRESENT A COMPLETE AND EFFECTIVE DEFENSE.
VI. [PETITIONER] WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS,
WHERE COUNSEL'S FAILURE TO TIMELY FILE MOTIONS TO
SUPPRESS THE DNA EVIDENCE THAT HAD BEEN DESTROYED.
VII. [PETITIONER] WAS DEPRIVED OF A FAIR TRIAL WHERE THE
PROSECUTION DID NOT FILE THE WITNESS OR EXHIBIT LIST IN A
TIMELY MANNER DEPRIVING THE DEFENSE [THE OPPORTUNITY] TO
EFFECTIVELY PREPARE TO CROSS EXAMINE THE STATE WITNESS.
VIII. THE TRIAL JUDGE VIOLATED [PETITIONER'S] DUE PROCESS
RIGHT TO A FAIR TRIAL WHEN IT ENGAGED IN BIASED OPINIONS THAT
EXPRESSED THE JUDGE'S BELIEF IN THE PROSECUTION'S
CASE AND DISBELIEF IN [PETITIONER'S] CASE REQUIRING
(Attach. C to Pet., ECF No. 1-1, PageID.21-22, 26, 28-29, 31,
33, 35, 37.) Respondent has filed an answer to the petition
(ECF No. 8) stating that the grounds should be denied because
they are noncognizable, procedurally defaulted, or without
merit. Upon review and applying the standards of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. 104-132, 110 Stat. 1214 (AEDPA), I agree that the grounds
are noncognizable, procedurally defaulted, and/or without
merit. Accordingly, I recommend that the petition be denied.
case was heard by a jury in a one-day trial held on October
following factual summary is taken from the opinion issued by
the Michigan Court of Appeals, which Petitioner does not
Officers arrested Betlem on June 26, 2013, and the prosecutor
charged him with one count of CSC III for engaging in sexual
penetration with TB. The prosecutor alleged that the offense
occurred between January 1, 2003, and September 15, 2005. The
evidence at trial showed that Betlem had a sexual
relationship with TB beginning when she was 13 years old. TB
subsequently married Betlem, but divorced him in 2013 and
cooperated with the police department's investigation.
Testimony demonstrated that Betlem impregnated TB in 2005,
when she was still 15 years of age. A DNA test confirmed the
child's paternity and Betlem admitted that he was the
child's father in an interview.
The prosecutor also charged Betlem in a separate case for
sexual crimes committed against his daughter. That case went
to trial first and TB testified against Betlem. The court in
that case convicted Betlem of four counts of first-degree
criminal sexual conduct (CSC I), MCL 750.520b(1)(a), and
providing obscene material to a minor, MCL 722.675. The trial
court sentenced him to serve concurrent prison terms of 30 to
60 years each for his CSC I convictions.
(Mich. Ct. App. Op., ECF No. 1-1, PageID.78-79; ECF No. 9-7,
PageID.690-91.) Additional facts, as necessary, will be
provided during discussion of the various habeas grounds.
defense filed a variety of motions prior to trial: a motion
to disqualify the judge; a motion to dismiss on grounds of
double jeopardy; a motion to dismiss for violation of the
180-day rule; and a motion to suppress the audio/video
recording at trial. The motion to disqualify was granted, the
motion to suppress was not heard because it was untimely, and
the other two motions were denied. (Reg. of Action, ECF No.
9-1, PageID.455-457.) Following a one-day jury trial, and
after less than 20 minutes of deliberation, Petitioner was
convicted of the only charged offense: one count of CSC III.
(T. Tr., ECF No. 9-5, PageID.671-73.) On November 12, 2014,
Petitioner was sentenced to a prison term of 12 to 22
½ years. (Sentencing Tr., ECF No. 9-6, PageID.698.)
appealed his conviction and sentence to both the Michigan
Court of Appeals and the Michigan Supreme Court, raising the
same eight issues presented in his habeas petition. In an
unpublished opinion issued on May 17, 2016, the court of
appeals affirmed the conviction, but remanded the case for
resentencing, because Offense Variable (OV) 11 was improperly
scored. (See Mich. Ct. App. Op., ECF No. 1-2,
PageID.78-86.) The Michigan Supreme Court denied leave to
appeal on January 5, 2017. (Mich. Ord., ECF No. 1-2,
did not petition for a writ of certiorari to the United
States Supreme Court. His one-year statute of limitations for
filing a federal habeas action therefore began to run on
April 5, 2017. Petitioner's habeas application therefore
was timely filed on April 4, 2018.
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
The AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An
application for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be
granted with respect to any claim that was adjudicated on the
merits in state court unless the adjudication: “(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S.
__, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the “clearly established”
holdings, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir.
2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3
(2014); Bailey, 271 F.3d at 655. Moreover,
“clearly established Federal law” does not
include decisions of the Supreme Court announced after the
last adjudication of the merits in state court. Greene v.
Fisher, 565 U.S. 34 (2011). Thus, the inquiry is limited
to an examination of the legal landscape as it would have
appeared to the Michigan state courts in light of Supreme
Court precedent at the time of the state-court adjudication
on the merits. Miller v. Stovall, 742 F.3d 642, 644
(6th Cir. 2014) (citing Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S., 134 S.Ct. 1697, 1705 (2014) (internal quotations
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Grounds I & IV: Speedy Trial
first ground for habeas relief, Petitioner contends that the
trial court abused its discretion when it refused to dismiss
the case on the grounds that the prosecutor failed to bring
Petitioner to trial in a timely fashion under Michigan's
statutory 180-day rule, Mich. Comp. Laws § 780.131, and
the Speedy Trial Clause of the Sixth Amendment of the United
States Constitution. In Ground IV, Petitioner similarly
claims that the prosecution violated his federal
constitutional right to a speedy trial when it failed to
bring him to trial for 470 days after his arrest and nearly
10 years after police initially investigated him for his
sexual relationship with TB.
Michigan Court of Appeals addressed the claims, as follows:
Betlem argues that this case should be dismissed for
violation of the statutory 180-day rule, MCL 780.131, and
violation of his constitutional right to a speedy trial.
Betlem preserved this claim of error by raising it before the
trial court. People v Dupree, 486 Mich. 693, 703;
788 N.W.2d 399 (2010). However, there is no indication that
he asserted his right to a speedy trial in the trial court.
Therefore, the speedy trial claim is unpreserved. People
v Cain, 238 Mich.App. 95, 111; 605 N.W.2d 28 (1999). We
review de novo a legal issue presented under the 180-day
rule. People v McLaughlin, 258 Mich.App. 635, 643;
672 N.W.2d 860 (2003). We review an unpreserved speedy trial
issue for plain error. People v Carines, 460 Mich.
750, 763-764; 597 N.W.2d 130 (1999).
A. 180-DAY RULE
A prisoner must generally be brought to trial within 180 days
after the Department of Corrections (the Department)
“causes to be delivered to the prosecuting attorney of
the county in which the warrant, indictment, information, or
complaint is pending written notice of the place of
imprisonment of the inmate and a request for final
disposition of the warrant, indictment, information, or
complaint.” MCL 780.131(1); MCR 6.004(D)(1). The
180-day period starts on the day after the prosecutor
receives written notice that a defendant is incarcerated in a
state facility and is awaiting trial on pending charges.
People v Williams, 475 Mich. 245, 256-257 n 4; 716
N.W.2d 208 (2006). The prosecution is not required to
commence trial within the 180-day period; rather, the
prosecution must act in good faith to move the case forward
and not engage in undue delay. People v Lown, 488
Mich. 242, 246-247; 794 N.W.2d 9 (2011).
The court arraigned Betlem on the charge in this case on June
26, 2013. In January 2014, while this case was pending, the
trial court tried him on the CSC charges regarding his
daughter and found him guilty. Betlem contends that, after he
was sentenced to prison in that case, which occurred on
February 19, 2014, the prosecution had notice that he was in
the Department's custody. He argues that the 180-day
period can begin when the prosecution knows or should know
that the defendant is in the Department's custody, or
when the Department knows or should know that a charge is
pending against a defendant in its custody.
Betlem relies on People v Hill, 402 Mich. 272; 262
N.W.2d 641 (1978), overruled in part by Williams, in
support of his argument. He acknowledges that
Williams overruled Hill to the extent that
Hill held that the 180-day period could begin when
the Department knew or had reason to know that a charge was
pending against an inmate, but maintains that Hill
is still good law for the proposition that the 180-day period
can begin when the prosecution knows or should know that a
defendant against whom a charge is pending is in the
Department's custody. However, although our Supreme Court
overruled Hill because the Court in that case
expanded the scope of the 180-day rule “by requiring
the prosecutor to bring a defendant to trial within 180 days
of the date that the Department of Corrections knew or had
reason to know that a criminal charge was pending against the
defendant.” The “statutory trigger, ” it
explained, “is notice to the prosecutor of the
defendant's incarceration and a departmental request for
final disposition of the pending charges.”
Williams, 475 Mich. at 259. Thus, contrary to
Betlem's assertion, the 180-day period does not begin
when the prosecution knows or should know that a defendant
against whom a charge is pending is in the Department's
custody. Rather, as our Supreme Court clarified, the period
begins only when the prosecution receives the requisite
notice from the Department.
Betlem does not claim that the Department gave the
prosecution the required notice. And, although there is a
letter from the Department, which is dated March 19, 2014,
and purports to notify the prosecutor of Betlem's
location and the pending charge, Betlem does not discuss this
letter and the record does not clearly establish whether the
letter was sent by certified mail as required under MCR
6.004(D)(1), or whether the prosecutor even received it.
Even assuming that this letter satisfied the notice
requirements, there is no support in the record for the
proposition that the prosecutor violated the 180-day rule.
The trial court held a pretrial hearing on April 2014, and
Betlem moved to dismiss the case for violation of the 180-day
rule and on double jeopardy grounds in July 2014. Assuming
the 180-day period commenced shortly after March 19, 2014,
the 180-day period clearly would not have expired by either
July 2014, which is when Betlem moved to dismiss, or by
August 25, 2014, which is when the trial court issued its
written opinion and order denying his motion. Furthermore,
Betlem's trial took place on October 9, 2014. As noted,
the prosecution was not required to commence trial within 180
days, but rather was required to act in good faith to move
the case forward and not engage in undue delay.
Lown, 488 Mich. at 246-247. There is no evidence of
undue delay and Betlem had his trial approximately 6-1/2
months after the March 19 letter was sent.
Therefore, there is no basis for granting relief under the
B. SPEEDY TRIAL
For similar reasons, Betlem cannot show that the delay in his
trial violated his constitutional right to a speedy trial.
See U.S. Const, Am VI; Const 1963, art 1, §20. To
determine whether a defendant has been denied a speedy trial,
courts will examine the following factors: (1) the length of
the delay; (2) the reasons for the delay; (3) whether the
defendant asserted his right to a speedy trial; and (4)
prejudice to the defendant resulting from the delay.
Williams, 475 Mich. at 261-262. The period of delay
begins when the defendant is arrested. Id. at 261.
Betlem was arrested in June 2013, and his trial took place in
October 2014. Because his trial was less than 18 months after
his arrest, Betlem has the burden of proving prejudice.
Williams, 475 Mich. at 262. Delays caused by court
scheduling are attributable to the prosecutor, but should be
given a neutral tint and minimal weight. Id. at 263.
Betlem moved to dismiss the case based on the 180-day rule,
but he did not separately assert his right to a speedy trial.
This factor weighs against his claim that he was denied his
right to a speedy trial. People v Rosengren, 159
Mich.App. 492, 508; 407 N.W.2d 391 (1987). Betlem also has
not shown that he was prejudiced by the delay. The charge
against him, CSC III, required the prosecutor to prove that
he engaged in sexual penetration with a person between 13 and
16 years of age. MCL 750.520d(1)(a). Although he asserts that
the length of the delay could have resulted in the loss of
memory for witnesses, TB did not express any memory