United States District Court, E.D. Michigan, Southern Division
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
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.
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.
charges against Petitioner arose from allegations that he
engaged in sexual penetration and sexual contact with the
sixteen-year-old 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
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).
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 fourth-degree criminal sexual
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. The Court of Appeals also denied
Petitioner's motion for reconsideration. See People
v. Mende, No. 305558 (Mich. Ct. App. Jan. 18, 2013).
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.
STANDARD OF REVIEW
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
(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;
(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 governing legal principle
from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's
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
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.
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
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.
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).
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 procedural-default 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.
Remarks During ...