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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JULIE CHRISTINE LAEL BAUMER,

Petitioner, Civil No. 2:08-CV-15075

HONORABLE PAUL D. BORMAN

v. UNITED STATES DISTRICT JUDGE

SUSAN DAVIS

Respondent,

__________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF

HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.

Julie Christine Lael Baumer, (“Petitioner”), confined at the Huron Valley Women’s

Correctional Facility in Ypsilanti, Michigan, has filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. In her application, filed through her counsel Carl Marlinga and

Charles I. Lugosi, petitioner challenges her conviction for first-degree child abuse, M.C.L.A.

750.126b(2). Respondent has filed a motion to dismiss the petition on the ground that petitioner

is seeking to raise claims which have not been exhausted with the state courts. For the reasons

stated below, in lieu of dismissing the petition, the Court will hold the petition in abeyance and

will stay the proceedings under the terms outlined below in the opinion to permit petitioner to

return to the state courts to exhaust her additional claims, failing which the petition shall be

dismissed without prejudice. The Court will also administratively close the case.

I. Background

Petitioner was convicted of the above offense following a jury trial in the Macomb

County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Baumer, No.

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267373 (Mich.Ct.App. April 12, 2007); lv. den. 480 Mich. 856; 737 N.W. 2d 729 (2007).

Petitioner now seeks a writ of habeas corpus. Although it is difficult to delineate the

claims precisely, it appears that petitioner is raising the following claims:

I. Julie Baumer was denied the effective assistance of trial and appellate counsel,

in violation of the Sixth and Fourteenth Amendments to the United States

Constitution.

II. Julie Baumer was convicted on evidence insufficient to constitute proof

beyond a reasonable doubt, in violation of the Fourteenth Amendment and In re

Winship, 397 US 358 (1970). 

III. Newly discovered evidence and evidence not presented to the jury due to

constitutional violations demonstrate that Julie Baumer is actually innocent under

the standards set forth in Schlup v Delo, 513 US 298 (1995) and Herrera v

Collins, 506 US 390 (1993).

It also appears that petitioner may be raising these claims:

IV. Exclusion of Dr. Ophoven’s testimony (pursuant to M.R.E. 703)(Petition, p.

13).

V. Subsidiary claims. “Several subsidiary claims require further factual review.”

(Petition, pp. 15-16).

II. Discussion

The instant petition is subject to dismissal because it contains several claims which have

not been exhausted with the state courts. 

As a general rule, a state prisoner seeking federal habeas relief must first exhaust his

available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and

(c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). The Antiterrorism and Effective Death

Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which mandates

dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state

courts but has failed to do so. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). 

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Federal district courts must dismiss mixed habeas petitions which contain both exhausted and

unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v. Lundy, 455 U.S.

509, 510, 522 (1982)). 

In the present case, a number of petitioner’s claims have not yet been presented to the

state courts. First, petitioner has presented to this Court several ineffective assistance of trial

counsel claims which have yet to be presented to the state courts. Specifically, petitioner claims

that trial counsel was ineffective for failing to consult with or present the testimony of an expert

radiologist, ineffectively apprised petitioner about her right to testify, and failed to raise the the

defense of venous sinus thrombosis (VST). Although petitioner raised a claim in her direct

appeal that counsel was ineffective for waiving the admission of fetal monitoring strips, which

would have established that the injuries to the child could have resulted at birth, petitioner did

not raise these additional ineffective assistance of trial counsel claims before the Michigan

appellate courts on her direct appeal.

The federal courts do not have jurisdiction to consider a claim in a habeas petition that

was not fairly presented to the state courts, and a claim may be considered "fairly presented"

only if the petitioner asserted both the factual and legal basis for his claim to the state courts.

McMeans v. Brigano, 228 F. 3d 674, 681 (6th Cir. 2000). A habeas petitioner is required to

present to the state courts “the same specific claims of ineffective assistance [of counsel] made

out in the habeas petition.” Wyldes v. Hundley, 69 F. 3d 247, 253 (8th Cir. 1995)(quoting Tippitt

v. Lockhart, 903 F. 2d 552, 554 (8th Cir. 1990)). Because petitioner’s ineffective assistance of

counsel claims involving the failure to present the testimony of an expert radiologist, the failure

to apprise petitioner of her right to testify, and the failure to raise a VST defense are different

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than the ineffective assistance of counsel claim that was presented during petitioner’s appeal of

right, these claims have not been fairly presented to the state courts. See Caver v. Straub, 349 F.

3d 340, 346-47 (6th Cir. 2003)(citing to Pillette v. Foltz, 824 F. 2d 494, 497 (6th Cir. 1987)). 

In addition, petitioner’s ineffective assistance of appellate counsel claim has not yet been

presented to the state courts. A claim of ineffective assistance of appellate counsel is subject to

the exhaustion requirement. See e.g. Coleman v. Metrish, 476 F. Supp. 2d 721, 732 (E.D. Mich.

2007).

Petitioner additionally claims that she has newly discovered evidence that would

establish that she is actually innocent of the crime. Petitioner is required to present her actual

innocence claim to the state courts before a federal court can consider such a claim on habeas

review. See e.g. Howard v. Wolfe, 199 Fed. Appx. 529, 532 (6th Cir. 2006); Cammuse v. Morgan,

105 Fed. Appx. 667, 669 (6th Cir. 2004). 

Moreover, petitioner admits that her claim involving the exclusion of Dr. Ophoven’s

testimony has never been presented to the Michigan courts. Finally, petitioner contends that

“[S]everal subsidary claims require further factual review.” None of these claims have been

presented to the state courts either.

This Court concludes that several of petitioner’s claims have not been exhausted,

because they were not presented as federal constitutional claims with the state courts. A habeas

petitioner may not present a “mixed” petition containing both exhausted and unexhausted claims

to a federal court. Rockwell v. Yukins, 217 F. 3d 421, 423 (6th Cir. 2000). Although this

requirement is not jurisdictional, a petition that includes unexhausted claims will ordinarily not

be considered by a federal court absent exceptional or unusual circumstances. Rockwell, 217 F.

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3d at 423. Moreover, with the AEDPA, Congress made it clear that the only circumstance in

which mixed petitions may be considered by a district court is where the court determines that

the petition must be dismissed in its entirety. Id. at 424. 

Exhausting state court remedies in this case requires the filing of a post-conviction

motion for relief from judgment under Michigan Court Rule 6.500. See Mikko v. Davis, 342 F.

Supp. 2d 643, 646 (E.D. Mich. 2004). Petitioner could therefore exhaust these claims by filing a

post-conviction motion for relief from judgment with the Macomb County Circuit Court under

M.C.R. 6.502. A trial court is authorized to appoint counsel for petitioner, seek a response from

the prosecutor, expand the record, permit oral argument, and hold an evidentiary hearing. M.C.R.

6.505-6.507, 6.508 (B) and (C). Denial of a motion for relief from judgment is reviewable by

the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an

application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Nasr v. Stegall,

978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is required to appeal the denial of

her post-conviction motion to the Michigan Court of Appeals and the Michigan Supreme Court

in order to properly exhaust any claims that she would raise in her post-conviction motion. See

e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).

The Court’s only concern in dismissing the current petition involves the possibility that

petitioner might be prevented under the one year statute of limitations contained within 28

U.S.C. § 2244(d)(1) from re-filing a petition for writ of habeas corpus following the exhaustion

of these issues in the state courts. 

A common circumstance calling for abating a habeas petition arises when the original

petition was timely filed, as was the case here, but a second, exhausted habeas petition would be

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 This Court has the discretion to stay the petition and hold it in abeyance even though petitioner did not

specifically request this Court to do so. See e.g. Banks v. Jackson, 149 Fed. Appx. 414, 422, n. 7 (6th Cir. 2005).

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time barred by the AEDPA’s statute of limitations. See Hargrove v. Brigano, 300 F. 3d 717, 720-

21 (6th Cir. 2002). The U.S. Supreme Court, in fact, has suggested that a habeas petitioner who

is concerned about the possible effects of his state post-conviction filings on the AEDPA’s

statute of limitations could file a “protective” petition in federal court and then ask for the

petition to be held in abeyance pending the exhaustion of state post-conviction remedies. See

Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines v. Weber, 544 U.S. 269 (2005)). 

A federal court may stay a federal habeas petition and hold further proceedings in abeyance

pending resolution of state court post-conviction proceedings, provided there is good cause for

failure to exhaust claims and that the unexhausted claims are not “plainly meritless.” Rhines, 544

U.S. at 278. 1

Petitioner’s claims do not appear to be “plainly meritless.” Further, petitioner may assert

that she did not previously raise these claims in the state courts due to the ineffective assistance

of appellate counsel. See e.g. Rhines v. Weber, 408 F. Supp. 844, 848-49 (D.S.D. 2005). This

Court has previously found that an appellate attorney’s alleged ineffectiveness constituted “good

cause” to justify holding a habeas petition in abeyance pending the petitioner’s return to the state

courts. See Scott v. Lafler, No. 2007 WL 2002731, * 2 (E.D. Mich. July 5, 2007). Other judges

in this district have reached the same conclusion. See e.g. Taylor v. Prelesnik, No. 2008 WL

3853300, * 3 (E.D. Mich. August 18, 2008)(Duggan, J.); Chambers v. White, No. 2006 WL

276738, * 3 (E.D. Mich. February 2, 2006)(Cohn, J.); Boyd v. Jones, No. 2005 WL 2656639, * 4

(E.D. Mich. October 14, 2005)(Roberts, J). Finally, it does not appear that petitioner has

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engaged in “intentionally dilatory tactics.”

When a district court determines that a stay is appropriate pending exhaustion of state

court remedies, the district court “should place reasonable time limits on a petitioner's trip to

state court and back.” Rhines, 544 U.S. at 278. To ensure that petitioner does not delay in

exhausting her state court remedies, the Court imposes upon petitioner time limits within which

she must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). Petitioner must

present her claims in state court by filing a post-conviction motion for relief from judgment with

the state trial court within sixty days from the date of this Order. See id. Further, she must ask

this Court to lift the stay within sixty days of exhausting his state court remedies. See id. “If the

conditions of the stay are not met, the stay may later be vacated nunc pro tunc as of the date the

stay was entered, and the petition may be dismissed.” Palmer, 276 F. 3d at 781 (internal

quotation omitted).

III. ORDER

Accordingly, IT IS ORDERED that that petitioner may file a motion for relief from

judgment with the state court within sixty (60) days of receipt of this Court's order. If petitioner

fails to file a motion for relief from judgment with the state courts by that date, the Court will

dismiss the present petition without prejudice.

If petitioner files a motion for relief from judgment, she shall notify this Court that such

motion papers have been filed in state court. The case shall then be held in abeyance pending

the petitioner's exhaustion of the claim or claims. The petitioner shall re-file her habeas petition

within 60 days after the conclusion of the state court post-conviction proceedings. Petitioner is

free at that time to file an amended habeas petition which contains any newly exhausted claims.

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This tolling is conditioned upon petitioner re-filing her habeas petition under the current caption

and case number within sixty (60) days after the conclusion of the state court post-conviction

proceedings. 

To avoid administrative difficulties, the Court ORDERS the Clerk of Court to CLOSE

this case for statistical purposes only. Nothing in this order or in the related docket entry shall be

considered a dismissal or disposition of this matter. See Sitto v. Bock, 207 F. Supp. 2d 668, 677

(E.D. Mich. 2002). 

It is further ORDERED that upon receipt of a motion to reinstate the habeas petition

following exhaustion of state remedies, the Court may order the Clerk to reopen this case for

statistical purposes.

SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: August 6, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

August 6, 2009.

s/Denise Goodine 

Case Manager

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