Martin v. Berghuis

Filing 22

ORDER denying 20 Motion for Certificate of Appealability. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARCO MARTIN,

2:15-CV-11207-TGB

Petitioner,
vs.
SHANE JACKSON,
Respondent.

OPINION AND ORDER
DENYING PETITIONER’S
MOTION FOR A
CERTIFICATE OF
APPEALABILITY

In 2015, Petitioner Marco D. Martin filed a pro se habeas corpus
petition under 28 U.S.C. § 2254. ECF No. 1. The pleading challenged
Petitioner’s Michigan convictions and sentence of fifteen to sixty years
for six counts of first-degree criminal sexual conduct involving someone
who was thirteen, fourteen, or fifteen years old and a member of the same
household. Mich. Comp. Laws § 750.520b(1)(b)(i).
Former United States District Judge Gerald E. Rosen initially
stayed the case at Petitioner’s request, (see ECF No. 7), but in 2018,
Petitioner filed a motion to lift the stay (ECF No. 8) and an amended
habeas corpus petition (ECF No. 9). The case was then reassigned to
United States District Judge Arthur J. Tarnow, who granted Petitioner’s
motion to lift the stay and re-opened this case. ECF No. 10. Judge
Tarnow ultimately denied the amended petition and declined to issue a

certificate of appealability. ECF No. 17.

Petitioner appealed to the

United States Court of Appeals for the Sixth Circuit, and following Judge
Tarnow’s death, the case was reassigned to this Court. Before the Court
is Petitioner’s motion for a certificate of appealability on his first, sixth,
and eighth habeas claims. ECF No. 20. The Court will deny Petitioner’s
motion because a certificate of appealability is not warranted.
I.

LEGAL FRAMEWORK

Prisoners seeking post-conviction relief under 28 U.S.C. § 2254
have no automatic right to appeal a district court’s denial or dismissal of
their habeas petitions; instead, they must first seek and obtain a
certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2).

To satisfy this standard, a habeas petitioner must

demonstrate that reasonable jurists “could disagree with the district
court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327. “While this standard is not
overly rigid, it still demands ‘something more than the absence of
frivolity.’ In short, a court should not grant a certificate without some
substantial reason to think that the denial of relief might be incorrect.”

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Moody v. United States, 958 F.3d 485, 488 (6th Cir. 2020) (internal
citations omitted).
II.

DISCUSSION

Petitioner seeks a certificate of appealability on three of his eight
habeas claims. The Court will address each of the three claims in turn.
A. The Prosecutor
Petitioner’s first habeas claim alleged that the cumulative effect of
the state prosecutor’s misconduct deprived him of a fair trial. Petitioner
asserted that the prosecutor injected issues broader than guilt or
innocence, infringed on his right to a fair trial during closing arguments,
and argued facts not in evidence. Judge Tarnow addressed these claims
on the merits in his dispositive opinion and concluded that the claims did
not warrant habeas relief. ECF No. 17, PageID.1306.
1. Casting Petitioner in a Negative Light, Injecting Issues
Broader than Guilt or Innocence, and Relying on Other
“Bad Acts” Evidence
In his pending motion, Petitioner takes issue with the prosecutor’s
use of testimony that cast him in a negative light. Petitioner claims that
the prosecutor elicited testimony about his theft of a car, drug use, and
not being liked by his family. ECF No. 20, PageID.1348. Petitioner did
not raise those specific examples of alleged misconduct in his habeas
petition, and new claims may not be raised for the first time in a motion
for a certificate of appealability. United States v. Locke, Criminal No. 093

259 (JDB), 2014 WL 12724270, at *2 (D.D.C. May 7, 2014) (unpublished
decision citing United States v. Narajo, 254 F.3d 311, 314 (D.C. Cir.
2001)).
In his habeas petition, Petitioner focused on the prosecutor’s
questions and comments about his source of income and whether he was
working outside the home when the alleged sexual abuse occurred. Judge
Tarnow found no merit in Petitioner’s claim for the following reasons.
First, the prosecutor appeared to be trying to show that Petitioner had
frequent opportunities to abuse the complainant without being
discovered or suspected of abuse. Second, the prosecutor did not imply
that Petitioner had a propensity to commit the crimes simply because he
was unemployed and poor. And third, Petitioner refuted the evidence
when he testified that he was employed, at least part-time, during the
time in question. ECF No. 17, PageID.1308-10.
Petitioner’s related habeas argument was that the prosecutor relied
on other “bad acts” evidence that Petitioner was abusive and violent
toward the complainant’s mother. Judge Tarnow rejected this claim
because it was based on an alleged violation of state law and because the
evidence was relevant. The evidence explained why the complainant may
have complied with Petitioner’s requests for sexual favors and why he
delayed telling anyone about the abuse. Id. at PageID.1310-12.

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Reasonable jurists could not disagree with Judge Tarnow’s
assessment of Petitioner’s claim about the alleged injection of issues
broader than guilt or innocence and the admission of “other acts”
evidence.

The Court, therefore, declines to grant a certificate of

appealability on that claim.
2. Shifting the Burden of Proof
Petitioner’s second claim about the prosecutor was based on the
prosecutor’s comment during closing arguments that, if the jurors
wanted to find Petitioner not guilty, they could concoct a reason to do so.
Petitioner argued that this remark shifted the burden of proof to him.
Judge Tarnow rejected Petitioner’s claim because (i) the remark did
not shift the burden of proof, (ii) the prosecutor was entitled to highlight
inadequacies in the defense, and (iii) the trial court’s jury instructions
served to mitigate any prejudice from the remark. Id. at PageID.131214. The trial court informed the jury that: the attorneys’ arguments were
not evidence; the prosecutor had to prove every element of the crimes;
Petitioner was not required to prove his innocence or do anything; and
the jurors could acquit Petitioner if they determined that the prosecutor
had not proved every element of the crime beyond a reasonable doubt.
Reasonable jurists would agree that the prosecutor’s comment
about concocting a reason to find Petitioner not guilty was either proper
or harmless error, given the trial court’s jury instructions. Petitioner,
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therefore, is not entitled to a certificate of appealability on his claim that
the prosecutor shifted the burden of proof to him.
3. Facts not in Evidence
Petitioner’s third argument about the prosecutor was that the
prosecutor argued facts not supported by the evidence. This claim was
based on the prosecutor’s remark that abused children sometimes
maintain that they love their parents.
The disputed remark was made in response to defense counsel’s
closing argument, which pointed out that even though the complainant
claimed to hate Petitioner, he complied with Petitioner’s requests for
sexual favors. Judge Tarnow rejected Petitioner’s claim because the
prosecutor was entitled to wide latitude during her rebuttal argument
and to fairly respond to defense counsel’s arguments. Id. at PageID.131416.
Reasonable jurists could not disagree with Judge Tarnow’s
assessment of Petitioner’s claim. The Court, therefore, declines to grant
a certificate of appealability on Petitioner’s claim that the prosecutor
relied on facts not in evidence.
B. Trial Counsel
Petitioner’s sixth habeas claim alleged that his trial attorney’s
deficient performance and erroneous advice prevented him from taking
advantage of a favorable plea offer.
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Petitioner asserted that the

prosecutor offered him a sentence below the minimum guidelines, but his
attorney failed to inquire into the terms of the deal. Petitioner also
asserted that his attorney prevented him from making an informed
decision on the plea offer by failing to inform him of the sentencing
guidelines. Judge Tarnow denied relief on this claim because Petitioner
failed to show that there was a firm plea agreement, that his attorney
failed to investigate the terms of an agreement, and that his attorney
gave him erroneous advice which caused him to forfeit a favorable plea
offer. Id. at PageID.1330.
Petitioner maintains in his pending motion that there was an initial
offer and that he was not afforded an opportunity to consider it. ECF No.
20, PageID.1350. The record, however, reveals that the parties were
given several weeks to negotiate a plea bargain and that defense counsel
was communicating with Petitioner. Petitioner was free on bond at the
time, and it appears that he was present during a pretrial conference
where the prosecutor stated that she had made an offer of a sentence
below the sentencing guidelines.

Thus, Petitioner was aware of a

tentative offer to plead guilty.
At the same pretrial conference, there was a discussion about
scheduling a polygraph examination. The trial court inquired whether
there was a possibility that the case would be resolved through a plea
agreement if Petitioner failed a future polygraph test. Defense counsel
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responded that he could not make that decision yet and would need to
confer with Petitioner further if that occurred.
The prosecutor apparently received authorization to make an offer
of “8-10,” but it is not known whether she extended such an offer to
defense counsel, and the Final Pre-trial Conference Summary states that
there was no final settlement offer. In fact, the prosecutor informed the
State’s appellate attorney during post-conviction proceedings that
Petitioner was not interested in negotiating a plea agreement.
In conclusion, the record fails to support Petitioner’s claim that his
attorney did not investigate a plea offer or adequately advise Petitioner
how to proceed. And because Petitioner maintained his innocence at trial
and at his sentencing, the record suggests that he simply was not
interested in pleading guilty. Thus, the evidence offers no substantial
reason to conclude that Judge Tarnow’s denial of relief on Petitioner’s
ineffectiveness claim might be incorrect.
Nevertheless, Petitioner argues in his pending motion that the
Court should be shocked by the State’s alleged failure to adopt procedures
to ensure that a criminal defendant receives effective assistance of
counsel during plea negotiations. Id. at PageID.1350. This is a new claim
and new claims may not be raised for the first time in a motion for a
certificate of appealability. Locke, 2014 WL 12724270, at *2. The Court

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declines to grant a certificate of appealability on Petitioner’s claim about
trial counsel and plea negotiations.
C. Lifetime Electronic Monitoring
Petitioner’s eighth and final habeas claim raised an ex post facto
challenge. Petitioner alleged that the trial court erroneously sentenced
him to lifetime electronic monitoring (“LEM”) even though the alleged
crimes occurred before the LEM statute became effective on August 28,
2006. The state trial court denied relief on this claim because Petitioner
was convicted after the statute became effective.
Judge Tarnow did conclude that the controlling date for ex post facto
purposes was the date that the offenses were committed rather than the
date of the conviction. But Judge Tarnow nevertheless concluded that
Petitioner was not entitled to relief on his claim because at trial the
complainant implied that some of the criminal sexual conduct—the
offense committed—occurred after the LEM statute became effective.
ECF No. 17, PageID.1335-37.
Petitioner asserts in his pending motion that the date of the alleged
crime was January 1, 2006, which was before the LEM became effective.
(ECF No. 20, PageID.1351.) This allegation is based on the state trial
court’s register of actions, which lists January 1, 2006, as the date of the
crime. See ECF No. 14-1, PageID.249. That date, however, appears to
reflect the year of the crimes, not the actual date when the incidents of
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criminal sexual conduct occurred. See, e.g., 1/12/12 Arraignment Tr. at
p. 3; ECF No. 14-3, PageID.290 (the state trial court’s remark at
Petitioner’s arraignment that, according to the charging document, the
date of the offense was the year 2006); 4/4/12 Trial Tr. at pp. 10-12; ECF
No. 14-6, PageID.325-27 (the trial court’s statement during voir dire that
the prosecutor was charging Petitioner with crimes that occurred in the
year 2006).
Petitioner has failed to show that his rights under the
Constitution’s Ex Post Facto Clauses were violated, and reasonable
jurists could not disagree with Judge Tarnow’s assessment of Petitioner’s
ex post facto claim.
Finally, although Petitioner alleges in his motion that he was not
informed during the state court proceedings that he was subject to LEM,
see ECF No. 20, PageID.1351, he did not raise that issue in his amended
habeas petition. He is not entitled to a certificate of appealability on a
claim raised for the first time in his motion for a certificate of
appealability. Locke, 2014 WL 12724270, at *2.
CONCLUSION
Petitioner has not made a substantial showing of the denial of a
constitutional right. Furthermore, reasonable jurists could not disagree
with Judge Tarnow’s resolution of Petitioner’s constitutional claims, nor
could they conclude that the claims deserve encouragement to proceed
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further. There simply is not a substantial reason to think that Judge
Tarnow’s denial of relief on the first, sixth, and eighth habeas claims
might be incorrect. Accordingly, Petitioner’s motion for a certificate of
appealability is DENIED.

IT IS SO ORDERED.

Dated: April 15, 2022

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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