UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARCO MARTIN, 

Petitioner, 

 vs. 

SHANE JACKSON, 

Respondent. 

2:15-CV-11207-TGB 

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 

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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. 09-

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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.1312-

14. 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.1314-

16. 

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. Petitioner asserted that the 

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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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