Chaplin v. Bauman

Filing 17

OPINION AND ORDER Staying Proceedings and Administratively Closing Case. Signed by District Judge Sean F. Cox. (JMcC)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID KENT CHAPLIN,
Petitioner,
CASE NO. 2:19-CV-12205
HONORABLE SEAN F. COX

v.
CATHERINE BAUMAN,
Respondent.
________________________________/

OPINION AND ORDER STAYING PROCEEDINGS
AND ADMINISTRATIVELY CLOSING CASE
I. INTRODUCTION
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner David Kent
Chaplin (“Petitioner”) was convicted of one count of third-degree criminal sexual conduct, Mich.
Comp. Laws § 750.520d, and one count of fourth-degree criminal sexual conduct, Mich. Comp.
Laws § 750.520e, following a jury trial in the Oakland County Circuit Court. He was sentenced to
concurrent terms of four years seven months to 15 years imprisonment and one to two years
imprisonment in 2016. Petitioner was released on parole on July 14, 2020. See Offender Profile,
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=972233. In his pro se pleadings,
he raises claims concerning the conduct of the prosecutor, the conduct of the trial judge, the
effectiveness of trial and appellate counsel, the jury selection process, and his speedy trial rights.
For the reasons set forth herein, the Court concludes that Petitioner has not exhausted state court
remedies as to several of his habeas claims and that a stay of these proceedings is warranted to allow
him to do so.

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II. PROCEDURAL HISTORY
Petitioner’s convictions arise from the sexual assault of his step-daughter. The Michigan
Court of Appeals described the relevant facts, which are presumed correct on federal habeas review,
28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
The instant case arose from defendant's sexual abuse of his stepdaughter, S.A., from
the time she was in the eighth grade through her senior year in high school.
Defendant married the complainant's mother, Beth Chaplin, in the summer of 2008,
when S.A. was about 12 years old. S.A. lived with defendant and Beth in a house in
Oakland Township. The complainant testified at trial that defendant began
inappropriately touching her when she was in the eighth grade. He would put his arm
between her breasts as they sat together on the couch. The sexual abuse progressed
to touching and squeezing her buttocks and touching her breasts both over and under
her clothes. By her twelfth grade year, defendant had engaged in multiple acts of
digital penetration and cunnilingus with S.A. S.A. further testified that the sexual
assaults usually occurred at home while her mother was at work or had gone to bed
for the night. In 2014, S.A. told her boyfriend about the abuse, which ultimately led
to a police investigation. The case proceeded to trial, and defendant was convicted
of one count each of CSC III and CSC IV....
People v. Chaplin, No. 331190, 2017 WL 2130265, *1 (Mich. Ct. App. May 16, 2017)
(unpublished).
Following his convictions and sentencing, Petitioner, through counsel, filed an appeal of
right with the Michigan Court of Appeals asserting that: (1) the trial court abused its discretion in
denying his request to introduce certain evidence, including expert testimony; (2) the trial court
abused its discretion in admitting other acts evidence; (3) trial counsel was ineffective for failing to
call character witnesses, for allowing a potential character witness to remain in the courtroom in
violation of the sequestration order such that she was precluded from testifying, and for convincing
him to waive his right to testify at trial; and (4) the trial court erred in scoring the state sentencing
guidelines. Petitioner also filed a supplemental pro per brief asserting that: (1) prosecution
witnesses provided false testimony and colluded with the prosecution; (2) trial counsel was
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ineffective for failing to object to the alleged false testimony; (3) witnesses engaged in fraud upon
the court; (4) the police engaged in misconduct during their investigation and testimony; and (5) the
police improperly questioned the victim. The Michigan Court of Appeals denied relief on those
claims and affirmed Petitioner’s convictions and sentences. Id. at *1-6. Petitioner filed an
application for leave to appeal with the Michigan Supreme Court, which was denied in a standard
order. People v. Chaplin, 501 Mich. 982, 907 N.W.2d 568 (March 5, 2018). Petitioner also filed
a motion for reconsideration, which was denied. People v. Chaplin, 501 Mich. 1063, 910 N.W.2d
257 (May 1, 2018).
Petitioner postmarked his federal habeas petition on July 24, 2019. He raises the following
claims: (1) the prosecutor committed misconduct by colluding with witnesses, failing to correct
false testimony, suppressing exculpatory testimony, and making inflammatory remarks in closing
argument, in violation of the Sixth and Fourteenth Amendments; (2) the trial judge exhibited bias
and committed structural error through her rulings on objections and the admission of evidence and
her failure to enforce an order directing the parties to refer to the victim as the complainant, in
violation of the Sixth and Fourteenth Amendments; (3) trial counsel rendered ineffective assistance
by failing to call character witnesses and others at trial, adequately cross-examine witnesses, object
to perjury and other matters, make adequate objections, move to strike a prospective juror for cause,
and object to judicial fact-finding that raised his minimum sentence, in violation of the Sixth
Amendment; (4) appellate counsel rendered ineffective assistance by failing to raise most of the
aforementioned issues on appeal, in violation of the Sixth Amendment; (5) the jury was not selected
from a fair cross-section of the community, in violation of the Sixth Amendment; and (6) his right
to a speedy trial was violated by the 17-month delay between the victim’s initial contact with the

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police and the trial, in violation of the Sixth Amendment.
This Court initially dismissed this case without prejudice due to Petitioner’s failure to pay
the filing fee or to submit an application to proceed in forma pauperis initially and in response to the
Court’s deficiency order. Petitioner appealed to the United States Court of Appeals for the Sixth
Circuit, which remanded the case to this Court for further consideration. The Court shall thus
disregard the filing fee deficiency and proceed to review the case.
III. ANALYSIS
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 must first
exhaust all available state court remedies. See 28 U.S.C. §§ 2254(b)(1)(A) and (c); 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). A Michigan
prisoner must raise each issue he or she seeks to present in a federal habeas proceeding to the state
courts, including both the Michigan Court of Appeals and the Michigan Supreme Court, to satisfy
the exhaustion requirement. See 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 claims must be “fairly presented” to the
state courts, meaning that the prisoner 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 presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368
(6th Cir. 1984). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Petitioner admits that he has not fully exhausted state court remedies as to all of his habeas

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claims. The record indicates that he did not raise portions of his prosecutorial misconduct, judicial
misconduct, and ineffective assistance of trial counsel claims in the state courts and did not raise his
ineffective assistance of appellate counsel, jury selection, and speedy trial claims in the state courts
before proceeding on habeas review. Generally, a federal district court should dismiss a “mixed”
petition for writ of habeas corpus, that is, one containing both exhausted and unexhausted claims,
“leaving the prisoner with the choice of returning to state court to exhaust his claims or amending
and resubmitting the habeas petition to present only exhausted claims to the district court.” Rose
v. Lundy, 455 U.S. 509, 510 (1982); see also Rust, 17 F.3d at 160.
While the exhaustion requirement is strictly enforced, it is not a jurisdictional prerequisite
for bringing a habeas petition. Granberry v. Greer, 481 U.S. 129, 134-35 (1987). Exhaustion may
be excused if there is no opportunity to obtain relief in the state courts or if the corrective process
is so clearly deficient as to render futile any effort to obtain relief in the state courts. Duckworth v.
Serrano, 454 U.S. 1, 3 (1981); Witzke v. Withrow, 702 F. Supp. 1338, 1348 (W.D. Mich. 1988). A
federal habeas court also has discretion to consider an unexhausted claim if it is meritless such that
addressing it would be efficient and not offend federal-state comity. Prather v. Rees, 822 F.2d 1418,
1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition may be denied on merits
despite failure to exhaust state court remedies).
In this case, Petitioner has available remedies in the Michigan courts by which to exhaust
his unexhausted claims before proceeding in federal court. For example, he may file a motion for
relief from judgment pursuant to Michigan Court Rule 6.500 with the state trial court and then
pursue his unexhausted issues in the state appellate courts as necessary. His unexhausted claims
should first be addressed to, and considered by, the Michigan courts. Otherwise, this Court is unable

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to apply the standard found at 28 U.S.C. § 2254.
Petitioner contends that exhaustion would be futile because he experienced difficulty/delays
in obtaining transcripts from the state trial court and believes that he cannot get a fair hearing on his
claims due to the court’s handling of his case. Petitioner, however, fails to show that pursuing a
motion for relief from judgment in the state courts would, in fact, be futile. To be sure, Petitioner
was able to file his federal habeas petition raising all of his claims with the materials in his
possession, and there is no constitutional right to transcripts on collateral review of state criminal
proceedings. See United States v. MacCollom, 426 U.S. 317, 323-24 (1976). Additionally,
Petitioner neither alleges nor establishes that he has been unable to file a motion for relief from
judgment in the state trial court, nor does he allege sufficient facts to show that such a motion, if
filed, would not be reviewed by the state courts in a judicious manner. Cf. Turner v. Bagley, 401
F.3d 718, 724 (6th Cir. 2005) (exhaustion requirement excused where claims were wrongfully
ignored by the state courts); Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir. 1992) (exhaustion
requirement excused where post-conviction request for relief languished in state court for more than
three years); see also Pillette v. Foltz, 824 F.2d 494, 498 (6th Cir. 1987) (exhaustion was not futile
merely because state court rejected petitioner’s request for counsel where there was no indication
that petitioner had previously sought post-conviction relief or that state court would refuse to
consider such a motion). Petitioner must exhaust his available state court remedies as to all of his
habeas claims before proceeding in federal court.
A federal district court has discretion to stay a mixed habeas petition to allow a petitioner
to present his or her unexhausted claims to the state courts in the first instance and then return to
federal court on a perfected petition. Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance

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is available only in “limited circumstances” such as when the one-year statute of limitations
applicable to federal habeas actions poses a concern, and when the petitioner demonstrates “good
cause” for the failure to exhaust state court remedies before proceeding in federal court and the
unexhausted claims are not “plainly meritless.” Id. at 277. In Rhines, the Supreme Court adopted
the stay and abeyance procedure to specifically address the situation when outright dismissal of a
habeas petition could jeopardize the timeliness of a future petition following the exhaustion of state
remedies. Id. at 275 (noting that if the court dismissed the habeas petition “close to the end of the
1-year period, the petitioner’s chances of exhausting his claims in state court and refiling in federal
court before the limitation period [expired would be] slim”). Stay and abeyance is thus generally
reserved for cases where the AEDPA’s one-year limitations period is likely to expire before a
petitioner can return to state court to exhaust additional claims and then return to federal court on
an amended petition. See, e.g., Moss v. Hofbauer, No. 07-10687, 2007 WL 317968, *2-3 (E.D.
Mich. Oct. 16, 2007).
In this case, Petitioner has the need for a stay. He raises several claims which have not been
presented to the state courts. The one-year limitations period applicable to federal habeas actions,
28 U.S.C. § 2244(d)(1), may pose a problem if the Court were to dismiss the petition to allow for
further exhaustion of state remedies as Petitioner appears to have submitted his pleadings with only
a few days remaining before the expiration of the one-year period. Petitioner raises a claim of
ineffective assistance of appellate counsel, which arguably may provide good cause for his failure
to raise the unexhausted claims on direct appeal. Lastly, the Court finds that at least some of the
unexhausted claims do not appear to be plainly meritless and there is no evidence of intentional
delay. The Court shall therefore hold the exhausted claims in the habeas petition in abeyance and

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stay the proceedings pending Petitioner’s exhaustion of state court remedies as to the unexhausted
claims.
IV. CONCLUSION
Accordingly, the Court holds the exhausted claims in the habeas petition in abeyance. These
proceedings are stayed. The stay is conditioned on Petitioner presenting the unexhausted claims to
the state courts within 30 days of the filing date of this order by filing a motion for relief from
judgment with the state trial court and then pursuing appeals as necessary. See Hill v. Anderson, 300
F.3d 679, 683 (6th Cir. 2002) (discussing procedure). The stay is further conditioned on Petitioner’s
return to this Court with a motion to reopen and amend the petition, using the same caption and case
number, within 30 days of fully exhausting state remedies. See Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002) (adopting approach taken in Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)).
Should Petitioner fail to comply with these conditions, the case may be dismissed. This case is
closed for administrative purposes pending compliance with these conditions.
Lastly, should Petitioner wish to forego pursuit of the unexhausted claims and to proceed
only on the fully exhausted claims contained in his habeas petition, he may move to reopen this case
to proceed on an amended petition containing only the exhausted claims within 30 days of the filing
date of this order. The Court makes no determination as to the merits of Petitioner’s claims.
IT IS SO ORDERED.

s/Sean F. Cox
SEAN F. COX
UNITED STATES DISTRICT JUDGE
Dated: October 13, 2020

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