Moore v. Rapelje
Filing
15
OPINION AND ORDER HOLDING HABEAS PETITION IN ABEYANCE AND CLOSING CASE FOR ADMINISTRATAIVE PURPOSES Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHAD MICHAEL MOORE,
Petitioner,
Case Number 2:14-cv-10357
Honorable Victoria A. Roberts
LLOYD RAPELJE,
Respondent.
____________________________________________/
OPINION AND ORDER HOLDING HABEAS PETITION IN ABEYANCE AND
CLOSING THE CASE FOR ADMINISTRATIVE PURPOSES
This matter is before the Court on Petitioner Chad Moore’s petition for a writ of habeas
corpus filed under 28 U.S.C. § 2254. Petitioner was convicted in the Midland Circuit Court of
delivery of methamphetamine, MICH. COMP. LAWS § 333.7401(2)(b)(i). As a result of this conviction
Petitioner is currently serving a sentence of 20-to-40 years. The petition raises four claims: 1) the
trial court erred in admitted evidence of Petitioner’s prior offenses, 2) the prosecutor committed
misconduct during opening statements and closing arguments, 3) the trial court misapplied the
habitual offender sentencing statute, and 4) Petitioner was denied the effective assistance of counsel
at trial and on appeal. The Court finds that Petitioner has not exhausted his state court remedies with
respect to his fourth claim. Therefore, the petition will be stayed and held in abeyance to allow
Petitioner to complete state court review of his unexhausted claim.
I. Facts and Procedural History
Charles Derr testified at Petitioner’s trial that he knew Petitioner and used to buy
methamphetamine from him. He met Petitioner in April of 2010, when Petitioner was at a friend’s
house, and Petitioner was cooking methamphetamine. Derr testified that he met with Petitioner once
a week or once a month, depending on what was going on. He purchased methamphetamine from
him in locations including down the road from his house, by a little gas station, back roads and sides
of the road. He had been to Petitioner’s house or his brother’s house a few times. The purchases at
issue happened between April 2010 and January 2011. Specifically, Derr performed a controlled buy
of methamphetamine from Petitioner on January 13, 2011.
James Harnick testified that he had known Petitioner since he was a young kid. Petitioner
had asked Harnick for a ride, and Harnick drove him to meet some guys from Beaverton. According
to Harnick, he drove to Olson Road, and Petitioner had him flash his lights. A guy got out of another
car and walked up to Harnick’s car, and spoke to Petitioner. Harnick testified that Petitioner and the
informant traded stuff back and forth regularly but that Harnick didn’t see the money traded.
Harnick said he figured the transaction was drug-related.
Detective Dustin Box testified that in January of 2011, he received some information
concerning Petitioner. Det. Box had contact with Charles Derr, and set up a controlled buy for
methamphetamine. Det. Box acted as an undercover officer, and drove Derr to meet Petitioner. Derr
made a cell phone call to Petitioner, telling him they were there. Petitioner told the confidential
informant that he had to package up the methamphetamine and he would be right there. Petitioner’s
van soon flashed its lights, and Derr got out. He came back a few minutes later and showed Det. Box
the methamphetamine. Det. Box ran the van’s license plate and it came back to James Harnick. The
information Derr received originally was that Petitioner was making his own meth. Det. Box did not
arrest him that night because he was hoping to get a couple of buys into Petitioner.
Based on this evidence Petitioner was convicted and sentenced as indicated above.
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan
Court of Appeals, raising the following claims in his brief on appeal and in his pro se supplemental
-2-
brief:
I. The trial court abused its discretion by overruling Moore’s objection to the
prosecution’s introduction of evidence of Moore’s other crimes where reasonable
notice of the intent to introduce such evidence was not given by the prosecution.
II. Moore was denied a fair trial by the prosecutor’s opening and closing argument
in which they stated that police were receiving “numerous tips” and that “fingers
were pointing to” Moore as “being involved” and that police “were receiving
information about methamphetamine being sold” and also received information from
witness Derr and that all of that information “pointed to” Moore.
III. The sentencing court erred by entering a judgment of sentence stating that Moore
was sentenced using a general habitual offender statute, Mich. Comp. Laws § 769.12,
where it specifically sentenced him using the repeat controlled substance offender
statute, Mich. Comp. Laws § 333.7413(2).
IV. Prosecutorial tactics rose to the level of a due process violation.
V. The judge’s biased conduct denied Moore equal protection.
VI. The cumulative effect of error and conduct by the People denied Moore a fair
trial.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished opinion.
People v. Moore, No. 306039, 2013 WL 1442215, at *1 (Mich. Ct. App. Apr. 9, 2013).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme
Court, raising the same claims. The Michigan Supreme Court denied the application because it was
not persuaded that the questions presented should be reviewed by the Court. People v. Moore, 836
N.W.2d 159 (Mich. 2013) (table).
Petitioner commenced the present action when by filing his habeas petition in the United
States District Court of the Western District of Michigan on January 8, 2014. The case was
subsequently transferred to this district.
II. Analysis
-3-
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first
exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("state prisoners
must give the state courts one full fair opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review process"); Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). The claims must be "fairly presented" to the state courts, meaning that the
petitioner must have asserted both the factual and legal bases for the claims in the state courts.
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v. Anderson, 460 F.3d
789, 806 (6th Cir. 2006) (citing McMeans). The claims must also be raised in the state courts as
federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A Michigan
prisoner must raise each issue he seeks to present in a federal habeas proceeding to both the
Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion requirement.
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D.
Mich. 1999). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Here, Petitioner exhausted his first three claims in the Michigan Court of Appeals and
Michigan Supreme Court during his direct appeal. His fourth claim, however, which contains
multiple allegations of ineffective assistance of trial and appellate counsel, has not been presented
to any state court. Because Petitioner has some claims that are exhausted and some that are not, his
petition is "mixed." Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to
dismiss mixed petitions without prejudice in order to allow petitioners to return to state court to
exhaust remedies. However, since the habeas statute was amended to impose a one-year statute of
limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often
effectively precludes future federal habeas review. This is particularly true after the Supreme Court
-4-
ruled in Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled
during the pendency of a federal habeas petition.
As a result, the Sixth Circuit adopted a stay-and-abeyance procedure to be applied to mixed
petitions. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In Palmer, the Sixth Circuit
held that when the dismissal of a mixed petition could jeopardize the timeliness of a subsequent
petition, the district court should dismiss only the unexhausted claims and stay further proceedings
on the remaining portion until the petitioner has exhausted his claims in the state court. Id.; see also
Rhines v. Weber, 544 U.S. 269, 277 (2007) (approving stay-and-abeyance procedure); Griffin v.
Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).
After the inmate exhausts state remedies, the district court can lift its stay and allow the
inmate to proceed in federal court. Rhines, 544 U.S. at 275-76. A stay is available in "limited
circumstances," such as when "the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather
than dismiss, the mixed petition." Id. at 278.
Petitioner's unexhausted claims ultimately may not warrant habeas relief, but they are not
"plainly meritless." Id. at 277. Furthermore, Petitioner is not engaged in abusive litigation tactics,
and he alleges that appellate counsel refused to raise all his claims in the appeal of right. Thus, it is
not an abuse of discretion to stay this case while Petitioner pursues additional state remedies.
The Court therefore ORDERS that it will STAY the case and hold it in ABEYANCE.
As a condition of the Court's stay, however, Petitioner must file a motion for relief from
judgment in the state trial court within ninety (90) days of the date of this order if he has not already
-5-
done so, and if the motion is denied, pursue an appeal through the Michigan Court of Appeals and
Michigan Supreme Court. If he is unsuccessful in state court, he may file an amended habeas corpus
petition and a motion to re-open this case, using the same case number that appears on this order.
An amended petition and motion to re-open this case must be filed within ninety (90) days of
exhausting state remedies. Failure to comply with the conditions of this stay could result in the
dismissal of the amended petition. Calhoun v. Bergh, 769 F.3d 409, 411(6th Cir. 2014).
Lastly, the Court ORDERS the Clerk of the Court to close this case for administrative
purposes. Nothing in this order should be construed as an adjudication of the merits of Petitioner's
claims.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: March 31, 2015
The undersigned certifies that a copy of this
document was served on the attorneys of record
and Chad Michael Moore by electronic means or
U.S. Mail on March 31, 2015.
S/Carol A. Pinegar
Deputy Clerk
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?