Mende v. Berghuis
OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus, DENYING a Certificate of Appealability, and GRANTING Leave to Proceed in forma pauperis on Appeal. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MARCUS JOHN MENDE,
Case No. 14-13799
Hon. Terrence G. Berg
OPINION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS [DKT. 1], DENYING A
CERTIFICATE OF APPEALABILITY, AND GRANTING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Marcus John Mende, presently confined at the Central
Michigan Correctional Facility in St. Louis, Michigan, has filed a pro se
habeas corpus petition challenging his state convictions for criminal
sexual conduct. He alleges as grounds for relief that (1) the prosecuting
attorney committed misconduct during her opening statement and
closing arguments, (2) trial counsel was ineffective for advising him to
reject a plea offer and for failing to object to the prosecutor’s conduct,
and (3) appellate counsel was ineffective for failing to raise the claims
about the prosecutor and trial counsel on direct appeal. Respondent
Mary Berghuis argues in an answer to the petition filed through
counsel that Petitioner procedurally defaulted his first claim
(prosecutorial misconduct) and that the state courts’ rejection of
Petitioner’s claims did not result in decisions that were either contrary
to or unreasonable applications of federal law, or were unreasonable
determinations of the facts. The Court agrees that Petitioner’s claims
do not warrant habeas relief. Accordingly, the petition will be denied.
The charges against Petitioner arose from allegations that he
engaged in sexual penetration and sexual contact with the sixteen-yearold daughter of a friend. Petitioner was tried before a jury in Oakland
County Circuit Court where the testimony established that –
On the night of May 30, 2010, the sixteen-year-old
complainant went to the home of John and Rebecca Lyle to
babysit their children while they went out for the evening.
The Lyles were family friends whom the complainant had
known for four to five years. The complainant, who had a
restricted driver’s license, intended to spend the night at the
Lyles’s. The Lyles and their friend, defendant in this case,
then left to go out. Two or three hours later, the
complainant fell asleep on a couch in the living room.
The complainant testified that she woke up briefly when she
heard the Lyles and defendant return but she quickly went
back to sleep. She woke again and moved to the living room
floor to sleep. At this time, defendant was sleeping on a
second, smaller couch in the Lyles’s living room. The
complainant heard defendant move to the bigger couch. He
then began to touch her feet. No words were exchanged.
The complainant was laying on her stomach and side on the
floor with her legs bent and a pillow under her head. She
woke up again when she felt defendant lying behind her and
grabbing her chest, first grabbing over her clothing and then
underneath her t-shirt and bra. The complainant testified
that she froze and did not do anything in response because
she was scared and could not believe what was happening.
Defendant asked the complainant if she was sleeping. She
did not respond. Her blankets had been kicked down to her
feet. Defendant got behind the complainant and pulled her
sweatpants down to about her knees and tried to put his
penis inside her vagina several times. He inserted his fingers
in the complainant’s vagina. During parts of this incident,
defendant pushed the pillow that the complainant’s head
was on up in front of her face so that she could only see the
pillow. Defendant eventually stopped, pulled [the
complainant’s] pants up, and left the house. Defendant’s
semen was discovered on the complainant’s sweatpants.
At trial, defendant did not dispute that the sexual conduct
took place; instead, defense counsel argued that the
complainant had consented. Defendant pointed to the fact
that he never threatened the complainant or tried to stop
her from leaving, nor did the complainant say or do anything
during the incident to indicate she did not consent.
People v. Mende, No. 305558, 2012 WL 6913773, at *1 (Mich. Ct. App.
Nov. 20, 2012).
On July 5, 2011, the jury found Petitioner guilty, as charged, of
two counts of criminal sexual conduct in the third degree, MICH. COMP.
LAWS § 750.520d(1)(b) (sexual penetration, using force or coercion), and
two counts of criminal sexual conduct in the fourth degree, MICH. COMP.
LAWS § 750.520e(1)(b) (sexual contact, using force or coercion). On July
29, 2011, the trial court sentenced Petitioner to concurrent terms of
seven and a half to fifteen years in prison for the third-degree criminal
sexual conduct convictions and one to two years in prison for the fourthdegree criminal sexual conduct convictions.
In an appeal as of right, Petitioner argued through counsel that
the trial court denied him a fair trial when the court failed to instruct
the jury on his defense of consent. In a pro se supplemental brief,
Petitioner argued that: (1) the trial court abused its discretion at
sentencing and relied on inaccurate information when the court raised
the misdemeanor charges of fourth-degree criminal sexual conduct to
the status of felonies for purposes of scoring the sentencing guidelines;
(2) the prosecutor deprived him of a fair trial and due process of law
during her opening statement and closing arguments; (3) trial counsel
deprived him of effective assistance by advising him to reject a plea
offer and by failing to object to the prosecutor’s misconduct; and (4)
appellate counsel was ineffective for failing to raise his supplemental
claims in her appellate brief. The Michigan Court of Appeals rejected
Petitioner’s arguments and affirmed his convictions in an unpublished,
per curiam opinion. See Mende, 2012 WL 6913773.1 The Court of
Appeals also denied Petitioner’s motion for reconsideration. See People
v. Mende, No. 305558 (Mich. Ct. App. Jan. 18, 2013).
Petitioner raised the same issues in the Michigan Supreme Court,
which denied leave to appeal because it was not persuaded to review
the issues. See People v. Mende, 493 Mich. 969; 829 N.W.2d 227 (2013).
On September 30, 2013, the Michigan Supreme Court denied
reconsideration. See People v. Mende, 495 Mich. 868; 843 N.W.2d 125
(2013). Finally, on September 30, 3014, Petitioner filed his pro se
habeas corpus petition pursuant to 28 U.S.C. § 2254.
Although the Court of Appeals affirmed Petitioner’s convictions, the court
remanded the case for correction of the judgment of sentence to reflect the correct
statutory citation for fourth-degree criminal sexual conduct. Mende, 2012 WL
6913773, at *1, n.1.
II. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to
§ 2254, the Court may not grant a state prisoner’s application for the
writ of habeas corpus unless the state court’s adjudication of the
prisoner’s claims on the merits
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
resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
28 U.S.C. § 2254(d).
Under the “contrary to” clause [of § 2254(d)(1)], a federal
habeas court may grant the writ if the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court
on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the “unreasonable
application” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of
the Court for Part II). “[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7
(1997), and ‘demands that state-court decisions be given the benefit of
the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).”
Renico v. Lett, 559 U.S. 766, 773 (2010). “A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a
federal court, a state prisoner must show that the state court’s ruling on
his or her claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103.
A. The Prosecutor
In his first claim, Petitioner alleges that the prosecuting attorney
denied him a fair trial and his right to due process when she asked the
jury to be advocates for the complainant by being the complainant’s
voice and by placing themselves in the complainant’s shoes. Petitioner
also asserts that the prosecutor argued facts not in evidence during
The Michigan Court of Appeals reviewed Petitioner’s claims “for
plain error affecting substantial rights” because Petitioner did not
contemporaneously object and request a curative instruction when the
prosecutor made the disputed remarks. This failure to comply with a
state’s procedural rule—such as that requiring a contemporaneous
objection—is considered a procedural default, and in such
circumstances the Court of Appeals analyzed Petitioner’s claims about
the prosecutor under a plain error standard of review. Here, the state
appellate court found that the prosecutor’s statements did not amount
to plain error.
Respondent thus argues that Petitioner’s claim is procedurally
defaulted. A procedural default is “a critical failure to comply with
state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). It “is not a
jurisdictional matter,” id., and to obtain habeas relief on procedurally
defaulted claims, a petitioner “must establish cause and prejudice for
the defaults” and “also show that the claims are meritorious.” Babick v.
Berghuis, 620 F.3d 571, 576 (6th Cir. 2010) (internal citation omitted).
Regardless of whether Petitioner can establish cause and
prejudice for failing to object to the prosecutor’s remarks, his
prosecutorial-misconduct fails on the merits, as will be explained below.
And because “federal courts are not required to address a proceduraldefault issue before deciding against the petitioner on the merits,”
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), the Court “cut[s] to
the merits here, since the cause-and-prejudice analysis adds nothing
but complexity to the case.” Babick, 620 F.3d at 576.
1. Remarks During Prosecutor’s Opening Statement
Petitioner contends first that the prosecutor deprived him of a fair
trial and due process of law when she made the following remarks
during her opening statement:
And I ask when you listen to all the evidence in this case, I’m
going to ask you to be her voice. Be her voice of what she
went through that night and to find the defendant guilty of
all four counts of criminal sexual conduct, two counts of third
and two counts of fourth because that’s exactly what he did
to her in the early morning hours of May 31st while she was
babysitting. Thank you.
(6/30/11 Trial Tr. at 121, ECF No. 6-4, Pg ID 216) (emphases added).
“[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability
of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). “[T]he
standard to be applied to claims of prosecutorial misconduct is whether
the conduct was ‘so egregious . . . as to render the entire trial
fundamentally unfair.’ ” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.
1997) (quoting Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.
1979)). “In deciding whether prosecutorial misconduct mandates that
habeas relief be granted, the Court must apply the harmless error
standard.” Id. (citing Eberhardt v. Bordenkircher, 605 F.2d 275 (6th
Cir. 1979)). An error is harmless unless it had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
The disputed remarks here – to be the complainant’s voice –
arguably were an appeal to the jurors’ emotions. Prosecutors must
“refrain from improper methods calculated to produce a wrongful
conviction,” Viereck v. United States, 318 U.S. 236, 248 (1943), and may
not incite the passions and prejudices of the jury by appealing to the
jurors’ emotions, rather than focusing on the facts or issues. Id. at 24748; Johnson v. Bell, 525 F.3d 466, 484 (6th Cir. 2008); Bates v. Bell, 402
F.3d 635, 642 (6th Cir. 2005) (acknowledging “the cardinal rule that a
prosecutor cannot make statements ‘calculated to incite the passions
and prejudices of the jurors’ ”) (quoting Gall v. Parker, 231 F.3d 265,
315 (6th Cir. 2000) (quoting United States v. Solivan, 937 F.2d 1146,
1151 (6th Cir. 1991)).
In this case, however, the jurors could have concluded that there
was no reason to be the complainant’s voice because the complainant
testified at trial and explained what she experienced on the night in
question. The question for the jurors was not whether they should be
the complainant’s voice, but whether the complainant was credible and
whether the prosecution had proved the element of force or coercion.
Furthermore, the prosecutor’s remarks were made at the
conclusion of her opening statement, which summarized what she
expected the evidence to show and which acknowledged the
prosecution’s burden of proving that the sexual acts were not
consensual. Taken in context, the remarks although improper were not
so prejudicial as to deprive Petitioner of a fair trial. See, e.g., United
States ex rel. Rockman v. DeRobertis, 717 F. Supp. 553, 569 (N.D. Ill.
1989) (finding that the prosecutor’s reference to the victim “in his grave
crying out for [a guilty verdict]” was problematic and improper because
it “arguably inflamed the emotions of the jurors,” but that, when
viewing the record as a whole, the statement did not deprive the
defendant of a fair trial).
The trial court, moreover, instructed the jurors before the
attorneys made their opening statements that the attorneys’ statements
were not evidence. (6/30/11 Trial Tr., at 95, ECF No. 6-4, Pg ID 210; id.
at 113, Pg ID 214). “[J]uries are presumed to follow their instructions.”
Richardson v. Marsh, 481 U.S. 200, 211 (1987), and there is no reason
to believe that they did not follow the trial court’s instructions in this
In conclusion, the prosecutor’s opening remarks did not deprive
Petitioner of a fair trial, and any error was harmless, given the trial
court’s jury instructions, the fact that the remarks were not pervasive,
and the fact that the complainant herself testified and gave voice to
what occurred on the night in question. Habeas relief is not warranted
on Petitioner’s claim about the prosecutor’s opening statement.
2. Remarks During Prosecutor’s Closing Arguments
Petitioner’s remaining claims about the prosecutor concern her
closing arguments. When the issue is the prosecutor’s remarks during
closing argument, the “clearly established Federal law” is the Supreme
Court’s decision in Darden v. Wainwright, 477 U.S. 168 (1986). Parker
v. Matthews, 567 U.S. 37, 45 (2012) (per curiam). In Darden, the
Supreme Court stated that
It “is not enough that the prosecutors’ remarks were
undesirable or even universally condemned.” Darden v.
Wainwright, 699 F.2d [1031, 1036 (11th Cir. 1983)]. The
relevant question is whether the prosecutors’ comments “so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431
(1974). Moreover, the appropriate standard of review for
such a claim on writ of habeas corpus is “the narrow one of
due process, and not the broad exercise of supervisory
power.” Id., at 642, 94 S.Ct., at 1871.
Darden, 477 U.S. at 181; see also Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 852 (6th Cir. 2017) (noting that the relevant
question on review of claims of prosecutorial misconduct in closing
arguments is whether the prosecutors’ comments infected the trial with
such unfairness as to make the resulting conviction a denial of due
process). A reviewing court must “analyz[e] disputed comments in the
context of the trial as a whole and recogniz[e] that inappropriate
comments alone do not justify reversal where the proceedings were
‘otherwise fair.’” United States v. Henry, 545 F.3d 367, 377 (6th Cir.
2008) (quoting United States v. Young, 470 U.S. 1, 11 (1985)).
a. Victim-related Remarks
Petitioner objects to the following statements made by the
prosecutor during her closing argument:
[The complainant] was scared and what did she do? She
stood still. That was her defense mechanism. No—no one—
until you’re in that situation, what would you do? Well, I
stood still. I didn’t move. I pretended like I was still
sleeping. I was afraid.
And again, in her defense mechanism she says, I left my
shoes. I get in the car. But we know she’s afraid. We know
that she’s afraid ‘cuz we’re in that moment with her when she
was telling (indiscernible)—telling you what had gone on in
Think about that. Think about that moment, her having to
tell her mom what she had gone through. [The
complainant’s mom] says, I could barely understand her. I
got—Mark hurt me. She was crying hysterically, I didn’t
know how to get her home. Imagine that?
(7/5/11 Closing Arguments and Jury Instructions, at 5-7, ECF No. 6-6,
Pg ID 334-35) (emphases omitted).
Petitioner maintains that asking the jurors to place themselves in
the complainant’s shoes was improper. While it is true that closing
arguments which “encourage juror identification with crime victims are
improper,” Johnson, 525 F.3d at 484, claims of prosecutorial misconduct
are reviewed deferentially in habeas cases. Millender v. Adams, 376
F.3d 520, 528 (6th Cir. 2004). And in this case, the prosecutor was
explaining why the complainant was passive and did not resist
Furthermore, the trial court charged the jurors not to let
sympathy or prejudice influence their decision. (7/5/11 Closing
Arguments and Jury Instructions, at 42, ECF No. 6-6, Pg ID 343.) The
trial court also instructed the jurors that the attorneys’ arguments were
not evidence and that they should consider only the admissible
evidence, which was the witnesses’ testimony and the exhibits. (Id. at
44-45, Pg ID 344.) These instructions tended to dissipate any prejudice
caused by the remarks.
The Court concludes that the prosecutor’s remarks were not so
flagrant as to deprive Petitioner of due process. Even if constitutional
error occurred, the error was harmless, given the trial court’s jury
b. Petitioner-related Remarks
Petitioner argues that the prosecutor made statements not
supported by the evidence when she stated that Petitioner had a sense
of entitlement to every woman with whom he came in contact. (Id. at
37, Pg ID 342.) Prosecutors may not “bring to the attention of the jury
any ‘purported facts that are not in evidence and are prejudicial,’ ” but
they may “‘argue reasonable inferences from the evidence.’” Byrd v.
Collins, 209 F.3d 486, 535 (6th Cir. 2000) (citations omitted). Here,
there was testimony presented at trial that Petitioner had sexual
relationships with several women, including with the complainant’s
mother and the woman whose children the complainant was babysitting
on May 30, 2010. (7/5/11 Closing Arguments and Jury Instructions, at
30, ECF No. 6-6, Pg ID 340.) In view of this evidence, it was not an
unreasonable inference from the testimony that the Petitioner felt
entitled to engage in sexual activity with women. The prosecutor’s
comment was proper for an additional reason: it made on rebuttal in
response to defense counsel’s closing remarks that Petitioner “was
having all kinds of sex,” including sexual relationships with the women
mentioned above. Id. “The prosecution necessarily has ‘wide latitude’
during closing argument to respond to the defense’s strategies, evidence
and arguments.” Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)
(quoting Henry, 545 F.3d at 377); see also Angel v. Overberg, 682 F.2d
605, 607–08 (6th Cir. 1982) (en banc) (stating that “[t]he prosecutor is
ordinarily entitled to wide latitude in rebuttal argument and may fairly
respond to arguments made by defense counsel”) (citing Donnelly, 416
U.S. at 637). The Court therefore finds no error in the prosecutor’s
comment about Petitioner’s alleged sense of entitlement concerning
Petitioner also appears to contest the prosecutor’s statement that
Petitioner fled after the incident with the complainant. (7/5/11 Closing
Arguments and Jury Instructions, at 40-41; ECF No. 606, Pg ID 343.)
But this argument was based on the testimony at trial. Specifically,
Rebecca Lyle testified that, when she talked with Petitioner shortly
after the incident with the complainant, Petitioner told her that “he was
running because he was scared,” and that he was scared of “get[ting] in
trouble for messing with a little girl.” (7/1/11 Trial Tr., at 220, ECF No.
6-5, Pg ID 325.) Because the argument was based on the trial
testimony, it was proper.
For the reasons given above, the prosecutor’s conduct was either
proper or not so egregious as to render Petitioner’s trial fundamentally
unfair. And even though Petitioner contends that the cumulative effect
of the prosecutor’s comments deprived him of a fair trial, this contention
is not cognizable on habeas corpus review. Sheppard v. Bagley, 657
F.3d 338, 348 (6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256
(6th Cir. 2005)). The Court therefore declines to grant relief on
Petitioner’s prosecutorial-misconduct claim.
B. Trial Counsel
In his second claim, Petitioner asserts that trial counsel was
ineffective for advising him to reject a plea offer and for failing to object
to the prosecutor’s conduct. The Michigan Court of Appeals adjudicated
this claim on the merits and concluded that trial counsel was not
The “clearly established Federal law” for Petitioner’s claim is
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a
defendant must demonstrate “that counsel’s performance was deficient”
and “that the deficient performance prejudiced the defense.” Id. at 687.
An attorney’s performance is deficient if “counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688. The
defendant must show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687.
The prejudice prong of the Strickland test “requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Id. The defendant must
demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. “This does not
require a showing that counsel’s actions ‘more likely than not altered
the outcome,’ ” but “[t]he likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. at 111-12 (quoting
Strickland, 466 U.S. at 693). In a habeas case, moreover, review of an
is “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170,
190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), because counsel
is “strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment,” Burt v. Titlow, 571 U.S. –
–––, ––––, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting
Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); internal quotation marks omitted).
In such circumstances, federal courts are to afford “both the
state court and the defense attorney the benefit of the
doubt.” Burt, supra, supra, at ––––, 134 S.Ct., at 13.
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam).
1. The Alleged Plea Offer
Petitioner alleges that the prosecutor offered him a plea bargain
that included a sentence of three years in prison and that he rejected
the offer on the advice of trial counsel. He claims that trial counsel’s
advice was based on the mistaken belief that he would receive no more
than three years in prison under the Michigan sentencing guidelines
and, thus, there was no benefit to pleading guilty.2 Petitioner points out
The sentencing guidelines actually were scored at 84 to 140 months (7 years to
eleven years, eight months), but reduced at sentencing to 78 to 130 months (six and
that he was convicted of all the charges and sentenced to more than two
times the sentence contemplated in the plea offer.
The Supreme Court’s decision in Strickland applies to ineffectiveassistance-of-counsel claims where the ineffective assistance results in
a rejection of the plea offer and the defendant is convicted at the
ensuing trial. See Lafler v. Cooper, 566 U.S. 156, 163 (2012). “In the
context of pleas a defendant must show the outcome of the plea process
would have been different with competent advice.” Id.
[A] defendant must show that but for the ineffective advice
of counsel there is a reasonable probability that the plea
offer would have been presented to the court (i.e., that the
defendant would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its
terms, and that the conviction or sentence, or both, under
the offer's terms would have been less severe than under the
judgment and sentence that in fact were imposed.
Id. at 164.
Moreover, because the Strickland standard, especially as
applied in the plea-bargain context, is a general one, the
range of reasonable applications permissible under § 2254(d)
is substantial. Harrington v. Richter, 562 U.S. 86, 105, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). Thus, when a federal
a half years to ten years, ten months). (7/29/11 Sentencing Tr., at 6, ECF No. 6-8, Pg ID
court reviews an ineffective-assistance claim under §
2254(d), the question is not simply whether counsel’s actions
were reasonable, but “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
McGowan v. Burt, 788 F.3d 510, 515 (6th Cir.), cert. denied, 136 S. Ct.
415, 193 L. Ed. 2d 328 (2015).
The Michigan Court of Appeals considered Petitioner’s claim on
direct appeal and rejected it as meritless. The Court of Appeals pointed
out that, other than Petitioner’s affidavit, there was no evidence in the
record that he was offered a plea deal or that he rejected it at the advice
of trial counsel.
Petitioner subsequently applied for leave to appeal in the
Michigan Supreme Court. While his case was pending there, he filed a
motion for miscellaneous relief, which included an affidavit from
attorney David J. Kramer. Mr. Kramer states in his affidavit that he
represented Petitioner, but substituted out of the case before trial. He
goes on to say that assistant prosecutor Barbara Morrison made a plea
offer of approximately three years’ incarceration if Petitioner pleaded
guilty to a count of criminal sexual conduct. See Affidavit Regarding
Plea Offer, ECF No. 6-10, Pg ID 638-39.
The People responded to Petitioner’s motion by stating that
Barbara Morrison was never assigned to Petitioner’s case and that
Heather Brown was the prosecuting attorney on the case. Attached to
the People’s response to Petitioner’s motion was Ms. Brown’s affidavit,
which states that she was assigned to the case at its inception and that,
at no time, did the People make a plea offer. See People’s Answer in
Opp’n to Deft’s Mot. for Miscellaneous Relief, ECF No. 6-10, Pg ID 69196.
Shortly afterward, the Michigan Supreme Court denied leave to
appeal. Petitioner sought reconsideration and attached a new affidavit
from Mr. Kramer, which states that, to the best of his recollection,
prosecutor Heather Brown offered Petitioner a two- or three-year prison
term in the form of a sentencing agreement. Mr. Kramer also states
that he communicated this information to Petitioner, and shortly
thereafter, he withdrew from the case. See Mot. to Reconsider, ECF No.
6-10, Pg ID 698-700.
Noticeably missing from the record and pleadings is an affidavit
from Marsha Kosmatka, who represented Petitioner at trial. And due
to the conflicting statements in the affidavits signed by Mr. Kramer and
Ms. Brown, it is unclear whether Petitioner was actually offered a plea
and sentencing agreement of three years in prison in return for his
guilty plea. In fact, in a letter that Petitioner sent to his appellate
attorney on December 26, 2011, he stated that he was beginning to
question whether the prosecution had made a plea offer. See Reply
Brief in Support of Pet. for Writ of Habeas Corpus, Ex. A. ECF No. 7, Pg
Even if there was a plea agreement, Petitioner informed his
appellate attorney at one point in time that he would not have taken
the plea if it were offered to him. Id. Although he goes on to say that
he would have accepted the plea offer if he had known that his actual
guidelines would not be three years, he then states that he had no
reason to believe that he would be found guilty because the sexual
activity was consensual. Id. It is questionable then whether Petitioner
would have accepted the plea offer if it existed, because he apparently
did not think he was guilty.
It is also unlikely that the trial court would have agreed to a
sentence of three years, because the court declined to sentence
Petitioner at the bottom of the guidelines (six and a half years), as
calculated at the sentencing. Instead, the court sentenced Petitioner to
a minimum of seven and a half years.
Finally, even assuming that the plea offer existed, that Petitioner
was inclined to accept it, and that he rejected it on the advice of trial
counsel, counsel could have reasonably believed that Petitioner would
not be found guilty and that there was no advantage to accepting the
plea offer. As the Michigan Court of Appeals pointed out, defense
counsel was effective in attempting to show that the complainant’s
behavior was reasonably interpreted by Petitioner as consent. An
attorney’s “erroneous strategic prediction about the outcome of a trial is
not necessarily deficient performance.” Lafler, 566 U.S. at 174.
Trial counsel arguably satisfied Strickland’s deferential standard,
and the state court’s conclusion – that Petitioner’s argument about trial
counsel was meritless – also is entitled to deference. The Court
therefore declines to grant relief on this claim.
2. The Failure to Object to the Prosecutor’s Conduct
Petitioner’s remaining claim about trial counsel is that counsel
failed to object to the prosecutor’s conduct. “[A] failure to object to
prosecutorial misconduct can amount to ineffective assistance of
counsel.” Hodge v. Hurley, 426 F.3d 368, 377 (6th Cir. 2005).
Nevertheless, as pointed out above, some of the prosecutor’s conduct
was proper, and the allegedly improper conduct either was not
egregious or it was harmless error. Because Petitioner’s underlying
claims about the prosecutor lack merit, defense counsel was not
ineffective for failing to object to the claimed errors. Hoffner v.
Bradshaw, 622 F.3d 487, 509 (6th Cir. 2010).
C. Appellate Counsel
In his third and final claim, Petitioner alleges that his appellate
attorney was ineffective for failing to raise his first and second habeas
claims in the appeal as of right. The Michigan Court of Appeals
disagreed with Petitioner because, in its opinion, Petitioner’s
underlying arguments lacked merit and Petitioner suffered no prejudice
from appellate counsel’s failure to raise the issues on appeal.
Claims of ineffective assistance of appellate counsel are governed
by the same Strickland standard as claims of ineffective assistance of
trial counsel. Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010).
To prevail on his claims, Petitioner “must show that his [appellate]
counsel’s performance was deficient and that he was prejudiced as a
result.” Id. (citing Strickland, 466 U.S. at 687). He must demonstrate
(1) that his attorney acted unreasonably in failing to discover and raise
nonfrivolous issues on appeal and (2) there is a reasonable probability
that he would have prevailed on appeal if his attorney had raised the
issues. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland,
466 U.S. at 687-91, 694).
Here, appellate counsel made the determination that there were
no meritorious appellate issues other than the one she presented to the
Michigan Court of Appeals. See appellate counsel’s letter to Petitioner
on May 15, 2012, ECF No. 609, Pg ID 518. Further, the claims that
appellate counsel failed to raise on appeal lack merit for the reasons
given above. Even if appellate counsel was remiss in not raising the
claims, Petitioner was able to present the issues in a pro se
supplemental brief, which the Court of Appeals considered, but
nevertheless rejected on the merits. As a result, Petitioner was not
prejudiced by appellate counsel’s performance, and habeas relief is not
warranted on Petitioner’s claim.
Petitioner may not appeal this Court’s opinion and order without
first acquiring a certificate of appealability, 28 U.S.C. § 2253(c)(1)(A);
Fed. R. App. P. 22(b)(1), and 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). “A petitioner satisfies this
standard by demonstrating that jurists of reason 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 v. Cockrell, 537 U.S. 322,
327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists would not find the Court’s assessment of
Petitioner’s claims debatable or wrong. The Court therefore declines to
issue a certificate of appealability. The Court nevertheless will allow
Petitioner to proceed in forma pauperis on appeal, because an appeal
from this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3).
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: September 11, 2017
Certificate of Service
I hereby certify that this Order was electronically submitted on
September 11, 2017, using the CM/ECF system, which will send
notification to each party.
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