DeLeon v. Campbell
Filing
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OPINION AND ORDER DENYING PETITIONERS REQUEST FOR A STAY AND DISMISSING THE HABEAS PETITION WITH PREJUDICE. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOE LOUIS DeLEON,
Petitioner,
CASE NO. 2:18-cv-10684
v.
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
BRYAN MORRISON,
Respondent.
_____________________________/
OPINION AND ORDER DENYING PETITIONER’S REQUEST FOR A
STAY AND DISMISSING THE HABEAS PETITION WITH PREJUDICE
I. Introduction
Petitioner Joe Louis DeLeon filed a petition for the writ of habeas corpus
under 28 U.S.C. § 2254. (ECF No. 5.) The pleading challenges Petitioner’s state
conviction for criminal sexual conduct (CSC) on grounds that he was denied a
public trial, his trial attorney did not object to the error, and his appellate attorney
failed to litigate the claim on direct appeal.
Respondent Bryan Morrison, through the Michigan Attorney General, filed
an answer to the petition in which he argues that Petitioner did not exhaust state
remedies for his claims and that the claims lack merit. (ECF No. 10.) In a reply
brief, Petitioner concedes that he did not exhaust state remedies for his claims. He
has asked the Court to stay this case so that he can return to state court, develop the
record, and raise his claims at all levels of state-court review. (ECF No. 12.)
The Court agrees with Respondent that Petitioner’s unexhausted claims lack
merit. Accordingly, the Court will deny Petitioner’s request for a stay and dismiss
the habeas petition with prejudice.
II. Background
Petitioner was charged in Eaton County, Michigan with two counts of firstdegree CSC and one count of second-degree CSC. (ECF No. 11-1, PageID.65.)
Following a jury trial in Eaton County Circuit Court, the jury found Petitioner
guilty of one count of first-degree CSC, see Mich. Comp. Laws § 750.520b(1)(a)
and (2)(b) (sexual penetration of someone under the age of 13 by an individual 17
years of age or older), and one count of second-degree CSC, see Mich. Comp.
Laws § 750.520c(1)(a) and (2)(b) (sexual contact with someone under the age of
13 by an individual 17 years of age or older). (ECF No. 11-1, PageID.65, 69.) The
jury acquitted Petitioner of the second count of first-degree CSC. Id.
The trial court initially sentenced Petitioner as a habitual offender to life
imprisonment for the first-degree CSC and to a consecutive term of 20 to 30 years
in prison for the second-degree CSC, with credit for 225 days. (ECF No. 11-4,
PageID.572-73.) Forty-three minutes after the proceeding concluded, the court
reconvened the matter due to an alleged problem with the life sentence. (Id. at
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PageID.574.) The prosecutor then explained that Petitioner’s life sentence would
make him eligible for parole in 10 years and that would violate the CSC statute,
which carried a mandatory minimum sentence of 25 years. In other words,
according to the prosecutor, Petitioner would not be eligible for parole under the
CSC statute until he served a minimum sentence of 25 years for first-degree CSC
and his consecutive minimum sentence of 20 years for second-degree CSC. (Id. at
PageID.574-75.) The prosecutor suggested that the court amend the sentence to a
term of 25 to 37½ years in prison for the first-degree CSC and to a consecutive
term of 20 to 30 years in prison for the other count. (Id. at PageID.575.)
Defense counsel agreed with the prosecutor’s argument and stated that, after
reading the statute and discussing the matter with the prosecutor, he thought that
the statute spoke for itself. (Id. at PageID.575-76.) The trial court then vacated the
life sentence and sentenced Petitioner to a term of 35 to 70 years for first-degree
CSC, consecutive to Petitioner’s sentence of 20 to 30 years for second-degree
CSC. (Id. at PageID.576.)
Petitioner appealed his convictions and sentence, but he did not object to the
amended sentence. Instead, he argued through counsel that (1) there was
insufficient evidence to support his conviction for second-degree CSC, and (2) the
trial court relied on facts, which the jury did not find beyond a reasonable doubt, to
increase his sentence. (ECF No. 11-8, PageID.674-75.) On November 15, 2016,
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the Michigan Court of Appeals rejected Petitioner’s claims and affirmed his
convictions in a published opinion. See People v. DeLeon, 317 Mich. App. 714
(2016).
Petitioner raised the same claims and three new claims in an application for
leave to appeal in the Michigan Supreme Court. (ECF No. 11-9, PageID.718-37.)
The three new claims alleged that: (1) trial counsel was ineffective for failing to
investigate, obtain evidence, produce certain witnesses, make certain objections
and requests at trial, forward notes and reports to him, and object to the
prosecutor’s misconduct; (2) the prosecutor committed misconduct during closing
arguments; and (3) appellate counsel was ineffective for failing to raise Petitioner’s
claims about trial counsel and the prosecutor, request an evidentiary hearing,
obtain Petitioner’s notes from trial counsel, and respond to his requests. (Id. at
PageID.724-33.) On May 31, 2017, the Michigan Supreme Court denied leave to
appeal because it was not persuaded to review the issues. See People v. DeLeon,
500 Mich. 1002 (2017).
On February 26, 2018, Petitioner commenced this case by filing a “motion
for stay and abeyance.” (ECF No. 1.) He stated that he wanted to exhaust his state
remedies for three claims before filing a petition for the writ for habeas corpus.
The three unexhausted claims alleged that (1) he had new reliable evidence of his
innocence, (2) trial counsel was ineffective for failing to investigate and discover
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the evidence, and (3) appellate counsel was ineffective for failing to investigate the
evidence and locate exculpatory witnesses. On April 9, 2018, the Court denied
Petitioner’s motion and dismissed his case without prejudice because Petitioner
had not filed a habeas petition with his motion, and his motion was not an adequate
substitute for a habeas petition. (ECF No. 4.)
Meanwhile, on March 26, 2018, Petitioner filed a motion to correct or
modify his sentence in the state trial court. (ECF No. 11-5.) The primary basis for
his motion was that the trial court lacked jurisdiction to vacate the sentence for life
imprisonment and then sentence him to a term of 35 to 70 years. (Id. at
PageID.579, 584.) Petitioner also claimed that the prosecutor and trial court had
misunderstood a Michigan statute and that the amended sentence was excessive
because he was 42 years old at his sentencing, and he had no reasonable prospect
of serving the sentence. (Id. at PageID.579-82.)
Finally, Petitioner argued that, if the trial court thought his issues were not
properly preserved, his trial attorney was ineffective for not objecting at his
sentencing, and appellate counsel was ineffective for not raising his claim on direct
appeal. (Id. at PageID.582.) Petitioner asked the trial court to vacate the
“excessive” sentence and to re-sentence him to the original sentence of life
imprisonment. (Id.) At no point did he allege that he was denied a public
sentencing.
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On August 28, 2018, the trial court denied Petitioner’s motion to correct or
modify his sentence. The court stated that it did not have the authority to modify a
valid sentence, that Petitioner’s brief was untimely, and that even if the brief had
been filed in a timely manner, the sentence was not invalid in any way. (ECF No.
11-7.)
Petitioner appealed the trial court’s decision to the Michigan Court of
Appeals. He claimed that the trial court erred in denying his motion, that the court
lacked the authority to modify the initial sentence, and that his new sentence was
excessive. (ECF No. 11-10, PageID.784.) The Michigan Court of Appeals denied
leave to appeal for lack of merit in the grounds presented to the court. See People
v. DeLeon, No. 346625 (Mich. Ct. App. June 14, 2019).
Petitioner raised the same claims in an application for leave to appeal in the
Michigan Supreme Court. (ECF No. 11-11, PageID.843-44, 847.) In a subsequent
motion, he asked the supreme court for permission to add a new ground to his
application for leave to appeal. (Id. at PageID.923-24.) He then argued for the
first time that he was deprived of his right to a public trial, that defense counsel
was ineffective for failing to object to the imposition of a sentence while the
courtroom was closed, and that appellate counsel was ineffective for failing to
litigate his claim on direct appeal. (Id. at PageID.926, 932-35.) On February 4,
2020, the Michigan Supreme Court granted Petitioner’s motion to add an issue, but
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it denied leave to appeal because it was not persuaded to review the questions
presented to the court. See People v. DeLeon, 505 Mich. 975 (2020).
On February 28, 2020, Petitioner returned to this Court and filed a petition
for the writ of habeas corpus. (ECF No. 5.) His sole ground for relief reads:
Petitioner was deprived of his rights under the Sixth Amendment to a
public trial and the effective assistance of counsel where defense
counsel failed to object to the imposition of Petitioner’s sentence while
the courtroom was totally closed to the public[,] and appellate counsel
failed to litigate this claim on direct appeal.
(Id. at PageID.14, 16.) The Court then re-opened this case, directed the Clerk of
Court to serve the habeas petition on the State, and directed Respondent to file a
response to the habeas petition. (ECF No. 7.)
Respondent subsequently filed an answer in opposition to the petition. (ECF
No. 10.) As noted above, he maintains that Petitioner failed to exhaust his
remedies in state court and that the claims also lack merit. (ECF No. 10,
PageID.36.) Petitioner filed a reply in which he asks the Court to stay his case
while he exhausts state remedies for his claims. (ECF No. 12.)
III. Discussion
A.
Exhaustion of State Remedies
The doctrine of exhaustion of state remedies, codified at 28 U.S.C. §
2254(b)(1), requires state prisoners to “give the state courts an opportunity to act
on [their] claims before [they] present[] those claims to a federal court in a habeas
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petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy this
requirement, “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.” Id. at 845. This means that a prisoner must
“fairly present” the factual and legal basis for each claim in the state court of
appeals and the state supreme court before raising the claims in a federal habeas
petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009).
Petitioner did not raise his habeas claims in the state trial court or in the
Michigan Court of Appeals. He first raised the claims in a motion to add an issue
to his application before the Michigan Supreme Court. Although the Michigan
Supreme Court granted the motion, presentation of a claim to a state’s highest
court on discretionary review, without more, does not constitute “fair presentation”
of the claim; nor does it satisfy the exhaustion doctrine. Castille v. Peoples, 490
U.S. 346, 349-51 (1989). Petitioner, in fact, concedes that he did not properly
exhaust his claims at all levels of the state appellate court system, and he has asked
the Court to stay his case while he pursues post-conviction remedies in state court.
(ECF No. 12, PageID.955-57, 975-76.)
In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court
approved a “stay and abeyance” procedure which allows a federal district court to
hold a habeas petition in abeyance while the prisoner returns to state court to
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pursue state remedies for previously unexhausted claims. “Once the petitioner
exhausts his state remedies, the district court will lift the stay and allow the
petitioner to proceed in federal court.” Id. at 275-76.
But “stay and abeyance should be available only in limited circumstances.”
Id. at 277. A stay is appropriate when the petitioner had good cause for the failure
to present his claims first in the state courts, the unexhausted claims are not plainly
meritless, and the prisoner is not engaged in abusive litigation tactics or intentional
delay. Id. at 277-78.
Petitioner’s habeas claims lack substantive merit for the reasons given
below. As such, he is not entitled to a stay. And because the exhaustion rule is not
a jurisdictional requirement, Peoples, 489 U.S. at 349; Wagner, 581 F.3d at 415,
the Court denies Petitioner’s request for a stay, and proceeds to address the merits
of his claims. The Court’s review is de novo, because no state court adjudicated
the merits of Petitioner’s claims, and the deference due to state-court decisions
under the Antiterrorism and Effective Death Penalty Act of 1996 does not apply.
Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).
B. The Merits
1. Legal Framework
Petitioner’s ground for relief implicates his Sixth Amendment rights to
counsel and a public trial. “[T]he right to counsel is the right to effective
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assistance of counsel.” Kimmelman v. Morrison, 477 U.S. 365, 377 (1986).
When a public-trial issue is raised on collateral review as an ineffective-assistanceof-counsel claim, the defendant bears the burden of showing two things: that
counsel’s performance was deficient and that the deficient performance prejudiced
the defense. Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Strickland, 466 U.S. at 687. “]T]he defendant must show
that counsel’s representation fell below an objective standard of reasonableness.”
Id. at 688. To establish prejudice, the defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. The same standards apply to
claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S.
259, 285 (2000).
The Sixth Amendment also guarantees the accused in a criminal case the
right to a public trial. U.S. Const., amend. VI. This right is applicable to the States
through the Fourteenth Amendment, Argersinger v. Hamlin, 407 U.S. 25, 27
(1972), and it entitles the accused at the very least “to have his friends, relatives
and counsel present,” no matter what the offense was. In re Oliver, 333 U.S. 257,
271-272 (1948).
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2. Application
At issue here is the brief proceeding where the trial court vacated the life
sentence for Petitioner’s first-degree CSC conviction and then sentenced Petitioner
to a term of 35 to 70 years for the offense. Although that proceeding occurred
more than a month after Petitioner’s trial, “the Sixth Amendment right to a public
trial attaches at sentencing proceedings.” United States v. Rivera, 682 F.3d 1223,
1229 (9th Cir. 2012). “The public sentencing of criminal defendants is not merely
to provide a right to an individual defendant but also to promote the ‘public’s trust
in the judicial institution [and] provide the public with the assurance[] that creates
that trust.’” United States v. Sorrell, 365 F. App’x 672, 677-78 (6th Cir. 2010)
(Clay, C.J., dissenting) (quoting Rita v. United States, 551 U.S. 338, 356 (2007))
(first alteration in original, second alteration added).
It is clear from the record before the Court that the initial sentencing, at
which Petitioner was sentenced to life imprisonment, was open to the public,
because the complainant and her parents addressed the trial court. See 8/21/15
Sentencing Tr. (ECF No. 11-4, PageID.556-564). It is also obvious from the
record that the prosecutor, defense counsel, and Petitioner were present when the
trial court vacated the life sentence and sentenced Petitioner to a term of 35 to 70
years. (See id. at PageID.574.) Whether anyone else, besides the trial judge and
court reporter, were present at that point is not clear from the record. Petitioner
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claims in an unnotarized affidavit dated December 15, 2019, that no one else, not
even members of his family, the victim, or the victim’s family, were present and
that he did not waive his right to a public trial. (ECF No. 5, PageID.23.)
Nevertheless, the point at which the trial court amended the sentence appears
to have been conducted in the courtroom, as opposed to a more secluded place,
such as the judge’s chambers. At no point did the trial court announce that it was
closing the courtroom to the public or preventing anyone from observing the
proceeding. And there is no reason to believe that closing the courtroom was
necessary for security reasons or to protect the integrity of the proceeding. It is
more likely that interested parties had dispersed by then, because Petitioner was
remanded to the custody of the county sheriff after the initial sentencing.
Petitioner’s own affidavit fails to allege that the trial court closed the
courtroom. He merely avers in the affidavit, that the only people present in the
courtroom during the amended sentencing were the sentencing judge, the
prosecutor, the court reporter, defense counsel, and himself. (ECF No. 5,
PageID.23.) This averment does not prove that the public was precluded from
attending the amended sentencing. And as Respondent points out, if the trial court
did close the courtroom, Petitioner could have provided some proof of that by
submitting an affidavit from the sentencing judge, the prosecutor, the court
reporter, or his own attorney to support his claim.
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To summarize, Petitioner has not demonstrated that he was denied his right
to a public sentencing. Therefore, his public-trial issue lacks merit, and his former
attorneys were not ineffective for failing to object or to raise the issue. “Omitting
meritless arguments is neither professionally unreasonable nor prejudicial.” Coley
v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
IV. Conclusion and Order
For the reasons given above, the habeas petition is DENIED.
The Court also DECLINES to issue a certificate of appealability, because
Petitioner has not made “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). In addition, reasonable jurists could not disagree
with the Court’s resolution of Petitioner’s constitutional claims, nor conclude that
the claims deserve encouragement to proceed further. Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). However, if Petitioner does appeal this decision, he may
proceed in forma pauperis on appeal without further authorization from this Court,
because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED.
Dated: November 30, 2021
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
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