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Mende v. Berghuis

United States District Court, E.D. Michigan, Southern Division

September 11, 2017

MARCUS JOHN MENDE, Petitioner,
v.
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

          TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.

         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.

         I. BACKGROUND

         The 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 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 fourth-degree 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.

         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 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.

         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 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 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.

         1. Remarks During ...


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