UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARCUS JOHN MENDE, 

 Petitioner, 

 Case No. 14-13799 

v. 

 Hon. Terrence G. Berg 

MARY BERGHUIS, 

 Respondent. 

________________________________/ 

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 
2 

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. 

I. BACKGROUND

 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 
3 

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). 
4 

 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 
5 

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. 

 

1

 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.
6 

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 

(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). 

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 
7 

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 
8 

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. 

III. ANALYSIS

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 

closing arguments. 

 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 
9 

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. 
10 

 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 
11 

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 247-

48; 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)). 
12 

 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). 
13 

 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 

case. 

 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 
14 

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)). 
15 

 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 

that home. 

 * * * * 

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 
16 

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 

Petitioner’s advances. 

 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 

instructions. 
17 

 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 
18 

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 

women. 

 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. 
19 

6-5, Pg ID 325.) Because the argument was based on the trial 

testimony, it was proper. 

 3. Conclusion

 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 

ineffective. 
20 

 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 
21 

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 

ineffective-assistance-of-counsel claim 

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 

 

2

 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 
22 

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 

389.) 
23 

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 

standard.” Id. 

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 
24 

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 691-

96. 

 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. 
25 

 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 

ID 718. 

 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 
26 

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 
27 

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 
28 

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 
29 

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. 

IV. CONCLUSION

 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)). 
30 

 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). 

SO ORDERED. 

 

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. 

s/A. Chubb 

 Case Manager