Dilts v. Brown

• Decision Date: 20 October 2021
• Docket Number: 1:13-cv-907
• Parties: WAYLAND DILTS #406058, Petitioner, v. MIKE BROWN, [1] Respondent.
• Court: U.S. District Court — Western District of Michigan

WAYLAND DILTS #406058, Petitioner,
v.
MIKE BROWN, ^[1] Respondent.

No. 1:13-cv-907

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

October 20, 2021

OPINION

SALLY J. BERENS U.S. MAGISTRATE JUDGE

This is a state prisoner's habeas corpus action brought under 28 U.S.C. § 2254. Petitioner Wayland Dilts is incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility in Kincheloe, Michigan. Following a jury trial in the Ingham County Circuit Court, Petitioner was convicted of nine counts of first-degree criminal sexual conduct (CSC), pursuant to Mich. Comp. Laws § 750.520b(1)(a) (victim under age 13); two counts of second-degree CSC, pursuant to Mich. Comp. Laws § 750.520c(1)(a) (victim under age 13); and one count of assault with intent to commit CSC, pursuant to Mich. Comp. Laws § 750.520g(2). On June 30, 2010, the court sentenced Petitioner to concurrent prison terms of 285 to 700 months for the CSC I convictions, 114 to 180 months for the CSC II convictions, and 38 to 60 months for the assault conviction. Petitioner has consented to the conduct of all proceedings in this case, including entry of a final judgment and all post-judgment motions, by a United States Magistrate Judge.

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On August 20, 2013, Petitioner timely filed his habeas corpus petition. The original petition raised four grounds for relief, as follows:

I. The trial court's admission of evidence under Mich Comp. Laws § 768.27a constituted reversible error

II. Petitioner was denied the effective assistance of counsel at trial

III. Petitioner was denied a fair trial because of the trial judge's examination of witnesses.

IV. It was structural error for the trial judge to tell the jury to “convict.”

(Pet., ECF No. 1 at PageID.6-10.)

On March 10, 2016, Magistrate Judge Carmody granted Petitioner's motion to stay the proceedings in this matter and hold the petition in abeyance to allow Petitioner to return to state court to exhaust his state-court remedies on his unexhausted claims. (ECF No. 28.) After exhausting those remedies, Petitioner returned to this Court and filed an amended petition raising the following additional claims:

V. On direct appeal, appellate counsel was constitutionally ineffective for failing to notice, raise, and preserve the issues now raised by Petitioner in his motion for relief from judgment and memorandum of law.

VI. Petitioner was deprived of this Sixth Amendment right to a public trial, when the courtroom was closed to the public for the testimony of five prosecution witnesses, and when the courtroom was closed to the public while the court admonished a defense witness.

VII. In each case, 09-001265-FC, 09-001332-FC, and 09-001331-FH, the trial court's beyond a reasonable doubt instruction on the burden of proof is constitutionally defective.

VIII. Ineffective assistance of trial counsel, to the extent that prejudice should be presumed. Trial counsel failed to object to the closure of the courtroom during the trial, failed to object to the trial court's defective beyond-a-reasonable-doubt instruction, and failed to object to the trial courts [sic] failure to properly administer the jury oath.

IX. Violation of Petitioner's due process rights where the prosecutor and trial judge repeatedly referred to complainants as victims.

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X. The trial court erroneously scored PRV2 (prior record variable) and OVs 3, 4, 9, 10, and 13 (offense variables).

XI. The jury oath was not properly administered to the jury in the formed [sic] as defined in Mich. Comp. Laws § 768.14 and Mich. Ct. R. 2.511(H)(2) [sic].

XII. Reversible error occurred where jurors were not instructed that they must unanimously agree as to which act(s) were proven.

(Am. Pet., ECF No. 41 at PageID.936-46.)

Respondent has filed answers to the petition and the amended petition (ECF Nos. 14 and 48), stating that the petition should be denied because the grounds are procedurally defaulted, lack merit, and are partially time-barred. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), the Court will deny the petition.

I. Factual background

The Michigan Court of Appeals set forth the essential facts of the case as follows:

Dilts sexually abused his own daughter, LD. Dilts also sexually abused LD's friends who lived next door, two young sisters, AC1 and AC2. Specifically, the trial court charged Dilts with four counts of CSC I against his daughter, two counts of CSC II against AC1, and five counts of CSC I and one count of CSC II against AC2.

LD testified that the abuse began with Dilts asking her, AC2, and another neighbor girl, JR, to put baby oil on his naked body and “massage” his back, stomach, legs, and penis. LD, AC2, and JR were under the age of six at this time. LD said that she and the two girls would masturbate Dilts in his bedroom. LD said that she did this “[e]very day, ” sometimes by herself, and sometimes with AC2. LD said this occurred while her mom was at work. Dilts babysat the young children and would give them money after they performed these acts.

LD said that when she was in first grade, about six years old, things escalated. Dilts made LD, AC2, and JR perform oral sex on him. LD said this occurred “all the time.” LD also said that Dilts would sometimes pull his white minivan over on dirt roads and make her perform oral sex on him. LD testified that Dilts first tried to have sex with her when she was about eight or nine years old but stopped when she began to cry. After this event, however, LD said that Dilts had sex with her a “couple” of times. LD said the abuse did not stop until 2006, when she was ten years old.

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AC2 and JR5 also testified at trial. The girls said that they would masturbate and perform oral sex on Dilts in his bedroom when no one was home. They also testified that Dilts would give them money afterwards. AC2 testified that she and LD performed oral sex on Dilts in a chair in his basement as well. AC2 also testified that Dilts attempted to have sex with her when she left school because she was sick and Dilts picked her up. Dilts was the emergency contact person for AC1 and AC2 because their mother was in prison and their father worked during school hours. Dilts told AC2 that if she did not perform oral sex on him she would not be able to see LD.

AC1 testified that Dilts made her put baby oil on his penis one day when he babysat her. Dilts said he would kill her if she did not do it or if she told someone. AC1 testified that she once refused to perform oral sex on Dilts. When she refused, Dilts made her stand in the corner while he hit her with a belt.

Dilts maintained that the girls were lying and that these events never occurred. . . . (Mich. Ct. App. Nov. 8, 2011 Op., ECF No. 15-10 at PageID.606-07.) The trial court sentenced Petitioner as set forth above.

On direct appeal to the Michigan Court of Appeals, Petitioner raised the first three issues in his habeas petition through counsel and the fourth issue in his pro se Standard 4 brief. (ECF No. 15-10 at PageID.623, 738.) The court of appeals affirmed Petitioner's convictions in an unpublished opinion issued on November 8, 2011. (Id. at PageID.606-15.)

Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, raising the same claims he had raised in the court of appeals. By order entered September 4, 2012, the Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. (ECF No. 1-1 at PageID.91.) Petitioner did not file a petition for writ of certiorari to the United States Supreme Court.

As noted above, after Petition filed his habeas petition, Magistrate Judge Carmody granted Petitioner's motion to stay the proceedings and hold the petition in abeyance while Petitioner returned to state court to exhaust his remedies on any unexhausted claims. Petitioner thereafter filed a motion pursuant to MCR 6.501 et seq. in the trial court, raising the latter eight issues set

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forth above. On March 31, 2017, the trial court denied his motion. (ECF No. 49-4 at PageID.1200- 07.) Petitioner then filed an application for leave to appeal in the Michigan Court of appeals, which was denied on October 17, 2017. (ECF No. 49-5 at PageID.1208.) Petitioner filed an application for leave to appeal to the Michigan Supreme Court, which denied his application on July 3, 2018. (ECF No. 49-6 at PageID.1231.)

II. AEDPA standard

The AEDPA “prevent[s] 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 on 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. 312, 316 (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 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...