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Betlem v. Rewerts

United States District Court, W.D. Michigan, Southern Division

June 21, 2019

DALE ALLEN BETLEM, SR., Petitioner,
v.
RANDEE REWERTS, Respondent.

          REPORT & RECOMMENDATION

          ELLEN S. CARMODY U.S. MAGISTRATE JUDGE

         This is 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 years.[1]

         On 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, PageID.17.)

         The 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 SP[]EEDY 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 REVERSAL.

(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.

         Discussion

         I. Factual allegations

         Petitioner's case was heard by a jury in a one-day trial held on October 9, 2014.[2]

         The following factual summary is taken from the opinion issued by the Michigan Court of Appeals, which Petitioner does not dispute:

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.

         The 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.)

         Petitioner 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, PageID.77.)

         Petitioner 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.

         II. AEDPA Standard

         This 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).

         The 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).

         A 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 omitted).

         The 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).

         III. Grounds I & IV: Speedy Trial

         In his 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.

         The 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 180-day rule.
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 difficulties. ...

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