Petition for Writ of Certiorari — Billy Hammonds, Petitioner v. Fredeane Artis, Warden

Supreme Court briefJul 8, 2024

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APPENDIX A

No. 23-1939

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Apr 26, 2024

KELLY L STEPHENS, Clerk

BILLY HAMMONDS,

Petitioner-Appellant,

FREDEANE ARTIS, Warden,

Respondent-Appellee.

)

ORDER

Before: BATCHELDER, Circuit Judge.

Billy Hammonds, a Michigan prisoner proceeding pro se, appeals the district court’s denial

of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Hammonds applies

for a certificate of appealability (“COA”).

A jury convicted Hammonds of third-degree criminal sexual conduct, see Mich. Comp.

Laws § 750.520d(l)(a), for engaging in sexual intercourse with a 15-year-old girl, A.M. The trial

court sentenced Hammonds as a fourth-offense habitual offender to 14 to 60 years’ imprisonment.

The Michigan Court of Appeals remanded the case so that Hammonds could move for a new trial

and an evidentiary hearing on his claims of ineffective assistance of counsel/ After a hearing, the

trial court denied Hammonds’s motion. The Michigan Court of Appeals affirmed the trial court’s

judgment, and the Michigan Supreme Court denied leave to appeal. People v. Hammonds, No.

336958,2018 WL 6004694, at *1 (Mich. Ct. App. Nov. 15,2018) (per curiam), perm. app. denied,

932 N.W.2d 619 (Mich. 2019).

In his § 2254 petition, Hammonds raised the following grounds for relief: (1) trial counsel

was ineffective for failing to call Trisha Lavake as a witness; (2) the prosecutor improperly shifted

the burden of proof during closing argument; (3) he was denied a fair trial by the prosecutor’s

repeated violation of the trial court’s order to refer to A.M. as the complaining witness rather than

No. 23-1939

-2-

the victim; (4) the trial court was biased toward the prosecution; (5) the evidence did not support

the trial court’s scoring of offense variable 10 at sentencing; and (6) he was denied his right to due

process when the State failed to arraign him in the circuit court. The district court1 denied the

petition, concluding that Hammonds’s claims were either meritless or not cognizable on habeas

review. The court declined to issue a COA.

In his CO A application, Hammonds argues the merits of only his ineffective-assistance

claim, but he states that he “is not waiving or abandoning review of the remaining issues.” This

is construed as a request for a CO A as to all six of his claims.

To obtain a COA, a petitioner must make “a substantial showing of the denial of a

constitutional right.”

28 U.S.C. § 2253(c)(2).

To satisfy this standard, a petitioner must

demonstrate “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). Under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), if a state court adjudicated a

petitioner’s claim on the merits, a district court may not grant habeas relief unless the state court’s

adjudication of the claim 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 “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); see Harrington v. Richter,

562 U.S. 86, 100 (2011). Where AEDPA deference applies, this court, in the COA context, must

evaluate the district court’s application of § 2254(d) to determine “whether that resolution was

debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336.

1 Both Hammonds and the State consented to proceed before a magistrate judge, pursuant to 28

U.S.C. § 636(c).

No. 23-1939

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Ineffective Assistance of Counsel

In his first claim, Hammonds asserted that counsel was ineffective for failing to call Lavake

to testify at trial.2 Lavake, A.M.’s adult cousin, had an apartment where A.M. occasionally spent

the night. See Hammonds, 2018 WL 6004694, at *1. Lavake and Hammonds were dating, and on

the night of the incident, Hammonds and A.M. were staying at Lavake’s apartment. Id. According

to A.M., she and Hammonds were watching a movie with Lavake, and after Lavake went to bed

alone, she and Hammonds had sex. Id.

Hammonds argued that counsel should have called Lavake to testify that, whenever

Hammonds spent the night at her apartment, they always went to bed at the same time and slept

together all night, as well as that A.M. “would flip flop ... as to whether she had sex with

[Hammonds] or not.” At the evidentiary hearing on Hammonds’s ineffective-assistance claims,

trial counsel testified that she attempted to contact and subpoena Lavake several times before trial

to no avail. Counsel stated, “[I]t was my understanding that [Lavake] wouldn’t answer the door

or she wouldn’t accept the subpoena. I don’t know. I couldn’t get her served.”

To establish ineffective assistance of counsel, a defendant must show both that

(1) counsel’s performance was deficient, i.e., that counsel’s representation fell below an objective

standard of reasonableness, and (2) the deficient performance resulted in prejudice to the defense.

Strickland v. Washington, 466 U.S. 668, 687-89 (1984). “[A] court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). The test for prejudice is whether “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694.

2 The district court also considered whether trial counsel was ineffective for failing to advise

Hammonds of the possible penalty that would have resulted had he accepted the prosecutor’s plea

offer. But Hammonds raised this claim only on direct appeal, not in his § 2254 petition. This

court therefore need not consider it.

No. 23-1939

-4Applying the Strickland standard, the Michigan Court of Appeals concluded that

Hammonds failed to demonstrate that counsel’s performance was deficient. Hammonds, 2018 WL

6004694, at *5. The court explained, “After defense counsel, county officials, and the police tried

and failed to reach [Lavake], it was reasonable for defense counsel to believe that [Lavake] would

not be available to provide testimony at trial.” Id. At the evidentiary hearing, Lavake testified that

she never received any subpoenas after the preliminary examination. But the trial court did not

credit this testimony. That credibility determination is entitled to deference on habeas review. See

28 U.S.C. § 2254(e)(1); Skaggs v. Parker, 235 F.3d 261, 266 (6th Cir. 2000) (holding that

credibility determinations made by state courts are presumed to be correct). On this record,

reasonable jurists could not disagree with the district court’s determination that the state appellate

court’s ruling was neither contrary to nor an unreasonable application of Strickland. See Coe v.

Bell, 161 F.3d 320, 342 (6th Cir. 1998) (rejecting claim that counsel was ineffective for failing to

interview alibi witnesses who “were unavailable or would not cooperate with counsel at the time

of pre-trial preparation”).

II.

Prosecutorial Misconduct

In his second claim, Hammonds asserted that the prosecutor improperly shifted the burden

of proof to the defense during her rebuttal argument. Specifically, Hammonds objected to the

following argument:

I presented you with a lot more evidence. I presented [defense counsel] with a lot

more evidence. And she could [have] brought that evidence to trial. She says well

what would Trisha have said? She could [have] called Trisha. She says what would

Ricky have said? She could [have] called Ricky. I’m not the only one with the

ability to call witnesses here. If they would [have] said something helpful to her

case she could have called them.

Defense counsel objected that the prosecutor was mischaracterizing the burden of proof, and the

prosecutor acknowledged that she bore the burden of proof. The court responded, “There’s a jury

instruction that addresses the burden of proof. We can move on.”

When reviewing a prosecutorial-misconduct claim in a habeas proceeding, “[t]he relevant

question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the

No. 23-1939

-5resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637,643 (1974)). Here, the district court concluded

that the prosecutor’s remarks were a fair response to defense counsel’s argument that the State did

not call these witnesses because their testimony would have been favorable to Hammonds and did

not impermissibly shift the burden of proof. See United States v. Farrow, 574 F. App’x 723, 728

(6th Cir. 2014) (“ [W]hen the defense has questioned why the prosecution has not called a particular

witness, the prosecution may respond that the defense also could have called that witness to

testify.”). The district court also concluded that, as a result of the trial court’s curative instruction,

the remark did not render the trial fundamentally unfair. See Joseph v. Coyle, 469 F.3d 441, 474

(6th Cir. 2006) (concluding that any prejudice from prosecutor’s comment on the defendant’s

failure to present evidence was remedied by the trial court’s instruction to disregard the remark

and its subsequent instruction about the state’s burden of proof). The record supports these

conclusions, and reasonable jurists could not disagree with the district court’s resolution of this

claim.

Hammonds’s third claim is that he was prejudiced by the prosecutor’s repeated reference

to A.M. as the “victim” despite the trial court’s order that she be referred to as a “complaining

witness.” The district court rejected this claim, concluding that the trial court’s limiting instruction

to the jury that A.M. be considered as a complaining witness “cured any error which may have

occurred by the prosecutor referring to her as a victim.” Because “[j jurors are presumed to follow

instructions,” United States v. Harvey, 653 F.3d 388, 396 (6th Cir. 2011); see also Greer v. Miller,

483 U.S. 756, 765-66 & n.8 (1987), no reasonable jurist could disagree with the district court’s

rejection of this claim.

III.

Judicial Bias

Hammonds asserted that the trial court demonstrated bias toward the prosecution when it

characterized A.M.’s inconsistent statements as “misunderstandings.” During defense counsel’s

cross-examination of A.M., the following exchange took place:

Do you recall telling Detective Harp that it was Trish and Billy that were

dating at the time?

No. 23-1939

-6-

They were sleeping together, yea.

Do you recall testifying back in March that it was Kaldan and Trish that

were dating at the time?

Yea.

And now today it’s they’re both dating her?

No, I don’t think that either one of them are dating her now. But back in

the summer they were both bouncing around with her, yea.

So that would be three inconsistent statements that you’ve given us.

The prosecutor objected and argued that defense counsel’s statement was “improper.” The trial

court sustained the objection, explaining, “I don’t think it’s inconsistency but it might just be some

misunderstanding. I don’t think it’s intentional. I think it’s just mistaken so if you want to rephrase

the question.”

“Judicial misconduct is found where the judge’s remarks clearly indicate a hostility to one

of the parties, or an unwarranted prejudgment of the merits of the case, or an alignment on the part

of the Court with one of the parties.” United States v. Ross, 703 F.3d 856, 878 (6th Cir. 2012)

(quoting United States v. Blood, 435 F.3d 612, 629 (6th Cir. 2006)). “To show constitutionally

improper prejudice, a judge’s comments must ‘display a deep-seated favoritism or antagonism that

would make fair judgment impossible.’” Bailey v. Smith, 492 F. App’x 619, 630-31 (6th Cir. 2012)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)); see Coley v. Bagley, 706 F.3d 741,

750 (6th Cir. 2013). Noting that defense counsel’s cross-examination of A.M. was “somewhat

confusing,” the district court agreed with the state appellate court’s finding that the trial court judge

was merely trying to make sure that A.M.’s testimony was accurate and not showing bias toward

the prosecution. Reasonable jurists could not disagree with the district court’s denial of this claim.

IV.

Sentencing

In his fifth claim, Hammonds challenged the trial court’s scoring of offense variable 10 at

sentencing. Reasonable jurists could not disagree with the district court’s decision to deny relief

No. 23-1939

-7on this claim. Hammonds’s challenge to the trial court’s scoring of an offense variable under the

state sentencing guidelines does not state a cognizable federal habeas claim.

See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991); Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003) (“A

state court’s alleged misinterpretation of state sentencing guidelines and crediting statutes is a

matter of state concern only.”). And although due process requires that “a defendant be afforded

the opportunity of rebutting derogatory information demonstrably relied upon by the sentencing

judge, when such information can in fact be shown to have been materially false,” Stewart v.

Erwin, 503 F.3d 488,495 (6th Cir. 2007) (quoting Collins v. Buchkoe, 493 F.2d 343, 345 (6th Cir.

1974)), Hammonds did not identify any materially false information that the trial court relied on

in calculating his sentence.

Arraignment

Finally, Hammonds asserted that he was denied his right to due process when the State

failed to arraign him on the charge that was ultimately levied against him in the circuit court. The

Michigan Court of Appeals concluded that this claim lacked merit because the register of actions

indicated that he waived arraignment on March 29, 2016, and therefore had notice of the charge

against him. Hammonds, 2018 WL 6004694, at *5. As the district court noted, the record includes

a “Waiver of Arraignment and Election to Stand Mute or Enter Not Guilty Plea” signed by defense

counsel and filed in the circuit court. Reasonable jurists could not disagree with the district court’s

denial of this claim.

For these reasons, Hammonds’s COA application is DENIED.

ENTERED BY ORDER OF THE COURT

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Apr 26, 2024

KELLY L. STEPHENS, Clerk

No. 23-1939

BILLY HAMMONDS,

Petitioner-Appellant,

FREDEANE ARTIS, Warden,

Respondent-Appellee.

Before: BATCHELDER, Circuit Judge.

JUDGMENT

THIS MATTER came before the court upon the application by Billy Hammonds for a

certificate of appealability.

UPON FULL REVIEW of the record and any submissions by the parties,

IT IS ORDERED that the application for a certificate of appealability is DENIED.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

Case l:20-cv-00592-RSK ECF No. 36, PagelD.1267 Filed 09/28/23 Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BILLY HAMMONDS,

Case No. 1:20-cv-592

Petitioner,

Hon. Ray Kent

DEWAYNE BURTON,

Respondent.

ORDER

In accordance with the Opinion entered this day:

IT IS ORDERED that a certificate of appealability is DENIED.

Dated: September 28, 2023

/s/ Ray Kent

RAY KENT

United States Magistrate Judge

Case l:20-cv-00592-RSK ECF No. 37, PagelD.1268 Filed 09/28/23 Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BILLY HAMMONDS,

Case No. l:20-cv-592

Petitioner,

Hon. Ray Kent

DEWAYNE BURTON,

Respondent.

JUDGMENT

In accordance with the opinion entered this day:

IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED

WITH PREJUDICE under Rule 4 of the Rules Governing § 2254 Cases for failure to raise a

meritorious federal clam.

Dated: September 28, 2023

/s/ Ray Kent

RAY KENT

United States Magistrate Judge

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Case l:20-cv-00592-RSK ECF No. 35, PagelD.1246 Filed 09/28/23 Page 1 of 21

UNITED STATES DISTRICT COURT

WESTERN.DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BILLY HAMMONDS,

Case No. l:20-cv-592

Petitioner,

Hon. Ray Kent

DEWAYNE BURTON,

Respondent.

OPINION

Billy Hammonds filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. For the reasons discussed below, the petition will be denied.

Background

Trial and conviction

A jury convicted Hammonds of third-degree criminal sexual conduct (CSC-III)

(victim.at least 13 and under 16 years of age), M.C.L. § 750.520d(l)(a). People v. Hammonds,

No. 336958,2018 WL 6004694 at *1 (Mich. App.Nov. 15,2018). The court sentenced Hammonds

as a fourth-offense habitual offender, M.C.L. § 769.12, to 14 to 60 years imprisonment. Id. at *2.

State court appeal

Hammonds filed a direct appeal which consisted of issues raised by his counsel and

issues raised by Hammonds in a pro se Standard 4 brief.

Hammon’s appellate counsel raised five claims on appeal:

Was [Hammond] denied the effective assistance of counsel guaranteed by

the federal and state constitutions (US CONST, AM VI; CONST 1963, ART 1, §

20) where trial counsel failed to call a witness who would have testified that

whenever [Hammonds] slept at her house that they went to bed together at the same

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1247 Filed 09/28/23 Page 2 of 21

time and slept together all night. Further she would have testified that the

complaining witness would flip flop to her on the issue as to whether she had had

sex with [Hammonds] or not?

II.

Did the trial court abuse its discretion when it denied [Hammond’s] Motion

for a New Trial based on the prosecution’s misconduct of shifting the burden of

proof to [Hammond] during closing argument?

III.

Did the trial court abuse its discretion when it denied trial counsel’s motion

for a mistrial where the prosecution repeatedly violated the trial court’s order that

the complaining witness would not be referred to as a “victim,” and [Hammonds’]

ability to get a fair trial could not be cured by a limiting instruction?

IV.

Did the the [sic] Trial Court’s interjection that the complaining witness’

statements were not inconsistent statements but rather “misunderstandings”

demonstrate the trial court’s partiality toward the prosecution and improperly

influence the jury by creating the appearance of advocacy and partiality against Mr.

Hammonds?

Must [Hammonds] be resentenced where the trial court abused its discretion

when it scored 10 points rather than 0 points for Offense Variable 10 where the

record did not support the allegation that [Hammonds] exploited [the minor, AM,]

based on her age.

Hammonds, No. 336958 (Appellate Brief) (ECF No. 11-15, PagelD.873-874).

Hammonds filed a Standard 4 Brief raising two issues:

I. ,

[Hammonds] must be arraigned in the circuit court in accordance to M.C.R.

6.113. [He] was scheduled to be arraigned on 3/29/16 in the circuit court and was

not arraigned or notife [sic] after.

II.

[Hammonds] was denied the effective assistance of counsel guaranteed by

the federal and state constitutions (US CONST, AM, VI; CONST 1963 ART 1, §

20 where the trial counsel failed to inform [Hammonds] of the proper plea

agreement the prosecution offered/proper guidelines.

Id. at PagelD.922-923. The Michigan Court of Appeals affirmed the conviction and denied

Hammonds pro se motion for reconsideration. See Hammonds, 2018 WL 6004694 at *6; Order

(Jan. 22, 2019) (ECF No. 11-15, PageID.791).

Hammonds filed a pro se application for leave to appeal to the Michigan Supreme

Court. Hammonds identified the following issues raised in the Michigan Court of Appeals:

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1248 Filed 09/28/23 Page 3 of 21

[Hammond] was denied the effective assistance of counsel guaranteed by

the federal and state constitution (US CONST, AM VI; CONST 1963, ART 1, §

20) where trial counsel failed to call a witness who would have testified that they

went to bed together at the same time and slept together all night. Further she would

have testified that the complaining witness would flip flop to her on the issue as to

whether she had had sex with [Hammonds] or not.

The trial court plainly erred when if failed to arraign [Hammonds] in Circuit

Court once he was bound over.

II.

The Trial Court’s interjection that the complaining witness statements were

III.

not inconsistent [sic] statements but rather “misunderstandings” demonstrated the

trial court’s partiality towards the prosecution and improperly influenced the jury

by creating the apperence [sic] of advocacy and partiality against Mr. Hammonds.

The trial courts [sic] abused its discretion when it denied trials [sic]

counsel’s motion for a mistrial where the prosecution repeatedly violated the trial

court’s order that the complaining witness would not be referred to as a “victim”[.]

[Hammonds’] ability to get a fair trial could not be cured by a limiting instruction.

IV.

The trial court abused its discretion when it denied [Hammond’s] Motion

for a new trial based on the prosecution’s misconduct of shifting the burden of proof

to [Hammond] during closing argument.

Application for leave to appeal (ECF No. 11-16, PagelD.1055-1077).

Hammonds raised one new issue before the Michigan Supreme Court:

The trial courts [sic] abused its discretion when it denied trial counsel’s

motion for a directed verdict, when the prosecution failed to prove each element

[of] Criminal Sexual Conduct 3rd degree MCL 750.520dl A.

Id. at PagelD.1078-1080. TheMichigan Supreme Court denied the application for leave to appeal

and Hammonds’ motion for reconsideration. People v. Hammonds, 504 Mich. 957 (Sept. 10,

2019); People v. Hammonds, 505 Mich. 979 (Feb. 4, 2020).

II.

Habeas claims

This matter is now before the Court on Hammonds’ petition seeking federal habeas

review pursuant to 28 U.S.C. § 2254. See Petition (ECF No. 1). Hammonds has raised the

following issues:

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1249 Filed 09/28/23 Page 4 of 21

Petitioner was denied the effective assistance of counsel guaranteed by the

federal and state constitutions (US CONST, AM VI; CONST 1963, ART 1, § 20)

where trial counsel failed to call a witness who would have testified that whenever

petitioner slept at her house that they went to bed together at the same time and

slept together all night. Further she would have testified that the complaining

witness would flip flop to her on the issue as to whether she had had sex with

petitioner or not.

II.

The trial court abused its discretion when it denied petitioner’s motion for

a new trial based on the prosecution’s misconduct of shifting the burden of proof

to defendant during closing argument.

III.

The trial court abused its discretion when it denied trial counsel’s motion

for a mistrial where the prosecution repeatedly violated the trial court’s order that

the complaining witness would not be referred to as a victim and petitioner’s ability

to get a fair trial could not be cured by a limiting instruction.

IV.

The trial court’s interjection that the complaining witness’ statements were

not inconsistent statements but rather “misunderstandings” demonstrated the trial

court’s partiality toward the prosecution and improperly influenced the jury by

creating the appearance of advocacy and partiality against Mr. Hammonds.

Petitioner must be resentenced where the trial court abused its discretion

when it scored 10 points rather than 0 points for offense variable 10 where the

record did not support the allegation that petitioner exploited [AM] based on her

age.

VI.

The petitioner must be arraigned in the Circuit Court in accordance with

Mich. Ct. Rule 6.113, petitioner was scheduled to be arraigned on 3/29/2016 in the

Circuit Court and was never arraigned at that or any other time thereafter, thereby

denying him of his due process right to the compulsory process of an arraignment.

Petition at PageID.5-11.

III.

Standard of review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “modified a

federal habeas court’s role in reviewing state prisoner applications in order to prevent federal

habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible

under law.” Bell v. Cone, 535 U.S. 685, 693-94 (2002). In this regard, 28 U.S.C. § 2254 provides

that,

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1250 Filed 09/28/23 Page 5 of 21

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

(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 this statute, “[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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation

marks omitted). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312,

316 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme

Court. 28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court

may not consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381-82

(2000); Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established

Federal law” does not include decisions of the Supreme Court announced after the last adjudication

of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is

limited to an examination of the legal landscape as it would have appeared to the Michigan state

courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits.

Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause if the state

court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if

it decides a case differently than the Supreme Court has done on a set of materially

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1251 Filed 09/28/23 Page 6 of 21

indistinguishable facts. Bell, 535 U.S. at 694. “To satisfy this high bar, a habeas petitioner is

required to ‘show that the state court’s ruling on the claim being presented in federal court was so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.’”

Woods, 575 U.S. at 316 (quoting

Harrington, 562 U.S. at 103).

Determining whether a rule application was unreasonable depends on the rule’s

specificity. Stermer v. Warren, 959 F.3d 704, 721 (2020). “The more general the rule, the more

leeway courts have in reaching outcomes in case-by-case determinations.”

Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004). “[Wjhere the precise contours of the right remain unclear,

state courts enjoy broad discretion in their adjudication of a prisoner’s claims.” White v. Woodall,

572 U.S. 415, 424 (2014) (internal quotations omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,

160 F.3d 1131, 1134 (6th Cir. 1998). In addressing a petitioner’s habeas claims, “a determination

of a factual issue made by a State court shall be presumed to be correct” and the petitioner “shall

have the burden of rebutting the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). This presumption of correctness is accorded to findings of state appellate

courts, as well as the trial court. Sumner v. Mata, 449 U.S. 539, 546-547 (1981).

Finally, § 2254(d) limits the facts a court may consider on habeas review. The

reviewing court “is limited to the record that was before the state court that adjudicated the claim

on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). “[I]f the petitioner’s claim was

never adjudicated on the merits by a state court, 28 U.S.C. § 2254(d), AEDPA deference no longer

applies.” Stermer, 959 F.3d at 721. “Instead, the petitioner’s claim is reviewed de novo as it would

be on direct appeal.” Id.

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1252 Filed 09/28/23 Page 7 of 21

IV.

Discussion

Ineffective assistance of trial counsel (Issue I)

Hammonds contends that he was denied the effective assistance of counsel for two

reasons. First, trial counsel failed to call a witness who would have testified that they went to bed

together at the same time and slept together all night, and that the victim would “flip flop to her”

as to whether she had sex with Hammonds. Second, trial counsel did not advise Hammonds of the

possible penalty associated with a plea offer.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a

two-prong test to determine whether counsel’s assistance was so defective as to require reversal of

a conviction. First, the defendant must show that counsel’s performance was deficient. “This

requires showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “In

this regard, the court will ‘indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” O’Hara v. Wigginton, 24 F.3d 823, 828 (6th

Cir. 1994) (quoting Strickland, 466 U.S. at 689).

Second, the defendant must show that counsel’s deficient performance prejudiced

the defense, i.e., “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Strickland, 466 U.S. at 687. “[Ajctual ineffectiveness claims

alleging a deficiency in attorney performance are subject to a general requirement that the

defendant affirmatively prove prejudice.” Strickland, 466 U.S. at 693. “Even if a [petitioner]

shows that particular errors of counsel were unreasonable, therefore, the [petitioner] must show

they actually had an adverse effect on the defense.” Id. The appropriate test is whether “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1253 Filed 09/28/23 Page 8 of 21

would have been different.” Id. at 694. In making this determination, the court “must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of

the time of counsel’s conduct.” Id. at 690.

Under Strickland, the reviewing court’s scrutiny of counsel’s performance is highly

deferential, and the court is to presume that counsel rendered adequate assistance and made

decisions with reasonable professional judgment. Id. at 689-690. “Surmounting Strickland's high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Establishing that a

state court’s application of Stiickland was unreasonable under § 2254(d) is all the more difficult,”

because “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential’, and

when the two apply in tandem, review is ‘doubly’ so[.]” Harrington, 562 U.S. at 105 (internal

citations omitted). “When § 2254(d) applies, the question is not whether counsel’s actions were

reasonable,” but rather “whether there is any reasonable argument that counsel satisfied

Strickland's deferential standard.” Id.

Failure to call a witness

The Michigan Court of Appeals addressed this claim as follows:

Ineffective Assistance of Counsel. Defendant claims that his defense counsel

was constitutionally deficient. A preserved claim of ineffective assistance of

counsel is “a mixed question of law and fact.” People v. Hunter, 493 Mich. 1015;

829 N.W.2d 871 (2013). We review questions of law de novo and “the trial court’s

factual findings for clear error. Clear error exists if the reviewing court is left with

a definite and firm conviction that the trial court made a mistake.” People v.

Armstrong, 490 Mich. 281,289; 806 N.W.2d 676 (2011) (cleaned up).

An appellate court is required to reverse a defendant’s conviction when

defense counsel “made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v.

Washington, 466 U.S. 668, 687; 104 S.Ct.2052; 80 L.Ed. 2d 674 (1984). A

defendant requesting reversal of an otherwise valid conviction bears the burden of

proving “(1) the performance of his counsel was below an objective standard of

reasonableness under prevailing professional norms and (2) a reasonable

probability exists that, in the absence of counsel’s unprofessional errors, the

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1254 Filed 09/28/23 Page 9 of 21

outcome of the proceedings would have been different.” People v. Sabin (On

Second Remand), 242 Mich. App. 656, 659; 620N.W.2d 19 (2000).

To prove the first prong, “[t]he defendant must overcome a strong

presumption that counsel’s assistance constituted sound trial strategy.” People v.

Stanaway, 446 Mich. 643, 687; 521 N.W.2d 557 (1994). “Decisions regarding

what evidence to present and whether to call or question witnesses are presumed to

be matters of trial strategy.” People v. Rockey, 237 Mich. App. 74, 76; 601 N.W.2d

887 (1999). “This Court does not second-guess counsel on matters of trial strategy,

nor does it assess counsel’s competence with the benefit of hindsight.” People v.

Russell, 297 Mich. App. 707, 716; 825 N.W.2d 623 (2012). Regarding the second

prong, a defendant is prejudiced if there is a reasonable probability that, “but for

defense counsel’s errors, the result of the proceeding would have been different.”

People v. Heft, 299 Mich. App. 69, 81; 829N.W.2d 266 (2012).

Defendant first argues that he was denied his right to effective assistance of

counsel when defense counsel failed to call TL as a witness at trial. Defendant

asserts that TL’s testimony would have corroborated his version of the facts and

cast significant doubt on the veracity of AM’s allegations. The record shows,

however, the defendant [sic] counsel attempted to contact and subpoena TL several

times for trial. After defense counsel, county officials, and the police tried and

failed to reach TL, it was reasonable for defense counsel to believe that TL would

not be available to provide testimony at trial. Thus, defendant has failed to show

that his defense counsel’s performance was deficient.

Hammonds, 2018 WL 6004694 at *4-5.

Here, the Michigan Court of Appeals applied the appropriate standard in

determining Hammonds’ claim of ineffective assistance of trial counsel. As that court observed,

the proposed witness, TL, could not be located by defense counsel, county officials, and the police.

Counsel is not ineffective for failing to call a witness who cannot be found. See Coe v. Bell, 161

F.3d 320, 342 (6th Cir. 1998) (counsel was not ineffective when he failed to interview numerous

alibi witnesses, where “most of these witnesses were unavailable or would not cooperate with

counsel at the time of pre-trial preparation”). Accordingly, this habeas claim is denied.

Failure to inform Hammonds of the possible penalty that would have

followed from accepting an offered guilty plea

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1255 Filed 09/28/23 Page 10 of 21

Next, Hammonds contends that defense counsel informed him that his minimum

sentencing range under a plea offer would have been between 78 and 162 months of imprisonment.

Hammonds contends that the correct guidelines range would have been 51 to 106 months and that

if counsel had advised him of the lesser range he would have accepted the offered guilty plea. The

Michigan Court of Appeals addressed this claim as follows:

Defendant, in his Standard 4 brief, also argues that defense counsel was

ineffective for failing to inform him of the possible penalty that would have

followed from accepting an offered guilty plea. Specifically, defendant alleges that

he was offered a plea for one count of CSC-1II as a second-offense habitual

offender, and that defense counsel informed him that his minimum sentencing

range under that plea would have been between 78 and 162 months of

imprisonment. Defendant contends that the correct range would have been 51 to

106 months, and that if defense counsel had advised him accordingly, he would

have accepted the offered guilty plea.

Assuming arguendo that defense counsel did advise defendant of a 78-to162-month guidelines range, were [sic] are unable to conclude that such advice was

unreasonable. Indeed, the record shows that, given the resolution of certain factual

questions at issue, defendant’s guidelines range could have been 78 to 162 months.

Defendant was assessed 47 points for prior record variables and 10 points for

offense variables. We have already concluded that the trial court properly scored

OV 10 at 10 points. Moreover, an argument could be made for an assessment of

an additional 60 OV points. OV 4 could have been scored at 10 points for the

psychological injury AM suffered after being bullied by her classmates for the

encounter, MCL 777.34(2); OV 11 could have been scored at 25 points given

evidence that defendant penetrated AM during the encounter, MCL 777.41 (l)(b);

and OV 13 could have been scored at 25 points given that evidence existed that

defendant was charged with committing three other crimes within five years of

committing the instant offense, MCL 777.43(1 )(c). Had the trial court not resolved

these determinations in defendant’s favor, defendant’s guidelines range would have

been 78-to-162 months. See MCL 777.63; MCL 777.21 (3)(a). Thus, defendant’s

second ineffective-assistance claim is also without merit.

Hammonds, 2018 WL 6004694 at *5.

“In the context of guilty pleas, the first half of the Strickland v. Washington test is

nothing more than a restatement of the standard of attorney competence[.]” Hill v. Lockhart, 474

U.S. 52,58 (1985).

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1256 Filed 09/28/23 Page 11 of 21

The second, or “prejudice,” requirement, on the other hand, focuses on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process. In other words, in order to satisfy the “prejudice” requirement, the

defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.

Id. at 59.

Here, Hammonds’ claim failed at the first Strickland requirement. As the Michigan

Court of Appeal’s explained, assuming that Hammonds’ counsel advised that the plea offer

included a guidelines range of 78 to 161 months imprisonment, such advice was not unreasonable.

In this regard,

A “mere inaccurate prediction, standing alone, [does] not constitute ineffective

assistance.” United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir.1990) (internal

quotation marks omitted). See generally, Barker v. United States, 7 F.3d 629, 633

(7th Cir.l 993) (“[misinformation from a defendant’s attorney, such as an incorrect

estimate of the offense severity rating, standing alone, does not constitute

ineffective assistance of counsel[”]).

Sivleyv. Romanowski, No. 1:06-cv-711, 2010 WL 565120 at *11 (W.D. Mich. Feb. 10, 2010).

Accordingly, this habeas claim is denied.

Prosecutorial misconduct

Petitioner raised two claims of prosecutorial misconduct.

Denial of motion for a new trial based on the prosecution’s misconduct

during closing argument (Issue II)

The Michigan Court of Appeals addressed the claims as follows:

Prosecutorial Misconduct. On appeal, defendant first raises two claims of

prosecutorial misconduct. Prosecutorial misconduct issues are decided on a caseby-case basis. People v. Grayer, 252 Mich. App. 349,357; 651 N.W.2d 818 (2002).

“We review the prosecutor’s statements in context to determine whether the

defendant was denied a fair and impartial trial.” Id. The prosecutor’s statements

“are to be evaluated in light of defense arguments and the relationship the

comments bear to the evidence admitted at trial.” People v. Dobek, 21A Mich. App.

58, 64; 732 N.W.2d 546 (2007). Generally, prosecutors are given great latitude

regarding their arguments and are “free to argue the evidence and reasonable

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1257 Filed 09/28/23 Page 12 of 21

inferences from the evidence as they relate to their theory of the case.” People v.

Seals, 285 Mich. App. 1, 22; 776 N.W.2d 314 (2009).

First, defendant contends that the prosecutor improperly shifted the burden

of proof to defendant during her rebuttal closing argument. Defense counsel argued

in her closing argument that the prosecutor’s failure to present TL or defendant’s

cousin as a witness meant that they would testify in defendant’s favor. The

prosecutor responded in her rebuttal that, if TL or the cousin had testimony that

could help defendant’s case, he could have called them as witnesses.

Ordinarily, “a prosecutor may not comment on the defendant’s failure to

present evidence because it is an attempt to shift the burden of proof.” People v.

Fyda, 288 Mich. App. 446, 464; 793 N.W.2d 712 (2010). A prosecutor’s comment

on a defendant’s failure to call a witness, however, does not shift the burden of

proof unless the prosecutor’s comment implicates the defendant’s right not to

testify. People v. Fields, 450 Mich. 94, 112; 538 N.W.2d 356 (1995). Rather, such

comments merely point out weaknesses in the defendant's case. Id. The Fields

Court explained that

The defendant’s decisions about evidence other than his own

testimony do not implicate the privilege [against self-incrimination],

and a comment on the defendant’s failure to call a witness does not

tax the exercise of the privilege. It simply asks the jury to assess the

value of the existing evidence in light of the countermeasures that

were (or were not) taken. [Id. at 114-115 (cleaned up).]

In this case, the prosecutor’s comment regarding defendant’s failure to call

a witness did not impinge defendant’s right not to testify at trial. No statements

were offered by either party that brought defendant’s right not to testify before the

jury’s attention, and, regardless, defendant ultimately did testify in his own defense.

The challenged statement was not an improper attempt to shift the burden of proof;

rather, it was a proper explanation of the parties’ rights to present witnesses in

response to defense counsel's closing argument. People v. Watson, 245 Mich. App.

572, 593; 629 N.W.2d 411 (2001). Moreover, the trial court properly instructed the

jury that the prosecutor bore the burden of proof, meaning that defendant cannot

show prejudice from the challenged comment. People v. Unger, 278 Mich. App.

210, 237; 749 N.W.2d 272 (2008). Thus, defendant’s first claim of prosecutorial

misconduct is without merit.

Hammonds, 2018 WL 6004694 at *2.

In order for a petitioner to be entitled to habeas relief on the basis of prosecutorial

misconduct, the petitioner must demonstrate that the prosecutor’s improper conduct “ ‘so infected

the trial with unfairness as to make the resulting conviction a denial of due process.

Darden v.

Case l:20*cv-00592-RSK ECF No. 35, PagelD.1258 Filed 09/28/23 Page 13 of 21

Wainwright, All U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). “[Tjhe touchstone of due process analysis... is the fairness of the trial, not the culpability

of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982)). In evaluating the impact of the

prosecutor’s misconduct, a court must consider the extent to which the claimed misconduct tended

to mislead the jury or prejudice the petitioner, whether it was isolated or extensive, and whether

the claimed misconduct was deliberate or accidental. See United States v. Young, 470 U.S. 1,1112 (1985). The court also must consider the strength of the overall proof establishing guilt, whether

the conduct was objected to by counsel and whether a curative instruction was given by the court.

See id. at 12-13; Darden, All U.S. at 181-82; Donnelly, 416 U.S. at 646-47; Berger v. United

Stales, 295 U.S. 78, 84-85 (1935).

“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”

Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487,

512 (6th Cir. 2003)). Indeed, “[t]he Supreme Court has clearly indicated that the state courts have

substantial breathing room when considering prosecutorial misconduct claims because

‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.’ ” Slagle

v. Bagley, 457 F.3d 501,516 (6th Cir. 2006) (quoting Donnelly, 416 U.S. 637, 645). Thus, in order

to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the

state court's rejection of his prosecutorial misconduct claim “was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 47 (2012) (internal quotation

omitted).

Flere, defense counsel faulted the government for failing to call the missing

witnesses, while on rebuttal the prosecutor pointed out that the defense failed to call the missing

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1259 Filed 09/28/23 Page 14 of 21

witnesses.1 The gist of Hammonds’ claim is that the prosecution improperly shifted the burden

of proof by pointing that Hammonds could have called missing witnesses to help his defense. The

Sixth Circuit addressed this issue in United States v. Farrow, 574 Fed. Appx. 723 (6th Cir. 2014):

Farrow argues that by faulting the defense for not calling Lockhart as a

witness, the prosecution shifted the burden, making it appear that Farrow was

obligated to call witnesses to prove his innocence. However, when the defense has

questioned why the prosecution has not called a particular witness, the prosecution

may respond that the defense also could have called that witness to testify. United

States v. Reynolds, 534 Fed. Appx. 347, 368 (6th Cir.2013) (citing United States v.

Gonzalez, 512 F.3d 285,292 (6th Cir. 2008)); United States v. Hernandez, 145 F.3d

1433, 1439 (11th Cir. 1998) (“[I]t is not improper for a prosecutor to note that the

defendant has the same subpoena powers as the government, particularly when

done in response to a defendant's argument about the prosecutor’s failure to call a

specific witness.” (internal quotation marks omitted)).The prosecution’s statements

in closing rebuttal that Farrow had the same subpoena powers to bring Lockhart to

testify were in response to defense counsel’s statements in closing criticizing the

prosecution for not putting Lockhart on the stand. The statements did not shift the

burden and do not otherwise constitute plain error.

Farrow, 574 Fed. Appx. at 728.

Furthermore, the jury was aware that Hammonds did not have the burden of proof.

The trial court gave the jury an instruction on the prosecutor’s burden to prove the crime beyond

a reasonable doubt:

During closing argument defense counsel stated:

Why didn’t the prosecutor bring in Trish, Kalden, Greg or Rickey? Everyone that was supposedly

there that night. Where are they? They would of [sic], in their opinion, corroborated [AM],

Trans. (ECF No. 11-10, PageID.624). On rebuttal the prosecutor stated:

All of this time that [defense counsel is] stating that I did not provide you with the evidence

you need to make a decision in this case, the very first thing the jury instructions states [sic] that if

you belief [AM] than [sic] I don’t need to present you with any other evidence.

But I presented you with a lot more evidence. I presented [defense counsel] with a lot more

evidence. And she could of [sic] brought any of that evidence to trial. She says well what would

Trisha have said? She could of [sic] called Trisha. She says what would Ricky have said? She could

[sic] called Rickey. I’m not the only one with the ability to call witnesses here. If they would of

[sic] said something helpful to her case she could have called them.. .”

Id. at PagelD.632-633.

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1260 Filed 09/28/23 Page 15 of 21

Every crime is made up of parts called elements. The prosecutor must prove

each element of the crime beyond a reasonable doubt. The defendant is not required

to prove his innocence or do anything. If you find the prosecutor has not proven

every element beyond a reasonable doubt then you must find the defendant not

guilty.

Trans. (ECF No. 11-11, PagelD.682). “A jury is presumed to follow its instructions.” Weeks v.

Angelone, 528 U.S. 225, 234 (2000). Accordingly, this habeas claim is denied.

Trial court’s denial of a motion for a mistrial where the prosecution

repeatedly referred to the complaining witness as a victim (Issue III)

The Michigan Court of Appeals addressed the second claim of prosecutorial

misconduct as follows:

Defendant also argues that the prosecutor engaged in misconduct when she

and her witnesses repeatedly referred to AM as “the victim” despite an order from

the trial court to refer to her as “the complaining witness” instead. We disagree.

In this case, the trial court made a pretrial ruling that the parties and their

witnesses were to refrain from using the word “victim” as opposed to “complaining

witness.” Over the course of trial, the prosecutor used the word “victim” four times

when specifically referencing AM and three more times without specifically

referencing AM. Moreover, two of the prosecutor’s witnesses—both police

officers—referred to AM as “the victim” in their testimonies.

Having reviewed the record, we are unable to conclude that the use of the

term “victim” denied defendant a fair trial. Although the prosecutor did refer to

AM as the victim on occasion, she usually quickly corrected herself to use a

different moniker. There is no indication that the prosecutor knew that her

witnesses would refer to AM as the victim or that she intentionally elicited such a

response and, although the term victim was used at other points at trial, these

references were not directed towards AM. Moreover, the trial court specifically

instructed the jury that AM was to be referred to as the “complaining witness”

rather than the “victim.” This instruction cured any prejudice to defendant,

rendering his second claim of prosecutorial misconduct without merit. People v.

Mahone, 294 Mich. App. 208, 212; 816 N.W.2d 436 (2011).

Hammonds, 2018 WL 6004694 at *3.

Here, immediately before the jury began deliberations, the trial judge gave them a

limiting instruction regarding references to AM as a “victim” during the trial:

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1261 Filed 09/28/23 Page 16 of 21

And just for the clarification of the limiting instruction I’ll just do it orally on the

record ladies and gentlemen. The limiting instruction that [defense counsel] is

referring to is at several times throughout the trial [AM has] been referred to as the

victim. She should officially be referred to as the complaining witness. That’s the

limiting instruction. So please when you’re considering her, she is at this point a

complaining witness. I think that satisfies the limiting instruction.

Trans. (ECF No. 11-11, PageID.728). This limiting instruction clarified AM’s status during the

trial, advised the jury to consider her as a complaining witness rather than a victim, and cured any

error which may have occurred by the prosecutor referring to her as a victim. Accordingly, this

habeas claim is denied.

Trial court was biased (Issue IV)

Hammonds contends that the trial judge showed partiality toward the prosecution

and improperly influenced the jury by creating the appearance of partiality against him. The

Michigan Court of Appeals addressed Hammonds’ claim as follows:

Judicial Partiality. Defendant next argues that reversal is warranted

because the trial court demonstrated that it was biased in favor of the prosecutor

when it held that AM’s responses to defense counsel’s questions were

“misunderstandings” rather than inconsistencies. Criminal defendants have a right

to a fair and impartial jury trial. People v. Stevens, 498 Mich. 162, 170; 869N.W.2d

233 (2015). “A trial judge’s conduct deprives a party of a fair trial if a trial judge’s

conduct pierces the veil of judicial impartiality.” Id. at 170-171. “A judge’s

conduct pierces this veil and violates the constitutional guarantee of a fair trial

when, considering the totality of the circumstances, it is reasonably likely that the

judge’s conduct improperly influenced the jury by creating the appearance of

advocacy or partiality against a party.” Id. at 171.

During the first day of trial, defense counsel began questioning AM about

her prior statements, attempting to emphasize inconsistencies. While crossexamining AM, the following exchange took place:

Q. Do you recall telling Detective Harp that it was [TL] and

[defendant] that were dating at the time?

A. They were sleeping together, yea.

Q. Do you recall testifying back in March that it was [another

person] and [TL] that were dating at the time?

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1262 Filed 09/28/23 Page 17 of 21

A. Yea.

Q. And now today it’s they’re both dating her?

A. No, I don’t think that either one of them are dating her now. But

back in the summer they were both bouncing around with her, yea.

Q. So that would [be] three inconsistent statements that you've given

us.

The prosecutor objected, arguing that defense counsel’s statement was

improper and that AM’s last statement did not constitute an inconsistency. The

trial court sustained the objection, stating,

I don’t think it’s inconsistency but it might just be some

misunderstanding. I don’t think it’s intentional. I think it’s just

mistaken so if you want to rephrase the question. I know what

you’re trying to get at ... . But for that point I’ll sustain the

objection.

Defense counsel then asked whether AM’s previous indication that TL and

defendant were dating was consistent with a previous indication that TL and

another person were dating. AM stated that she did not recall testifying that TL

and the other person were “dating.” Rather, she remembered stating that they were

sleeping together.

Having reviewed the challenged ruling, we are unable to conclude that the

trial court pierced the veil of judicial impartiality. The trial court was not ruling

definitively that the witness did not testify inconsistently. Rather, taken in context,

the trial court was merely pointing out that defense counsel and the minor witness

appeared to be misunderstanding each other, specifically with regard to the use of

the word “today.” The trial court did not preclude the line of questioning altogether,

but rather encouraged defense counsel to continue exploring the issue. Defense

counsel did so, specifically targeting the alleged inconsistency between AM’s trial

testimony and previous statements. Thus, it is clear that the trial court was merely

attempting to ensure accuracy in the proceedings and did not abandon its veil of

impartiality. Defendant’s claim is without merit.

Hammonds, 2018 WL 6004694 at *3-4.

“A fair trial in a fair tribunal is a basic requirement of due process.” In re

Murchison, 349 U.S. 133, 136 (1955). “Fairness of course requires an absence of actual bias in

the trial of cases.” Id. Here, Hammonds contends that he did not receive a fair trial because the

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1263 Filed 09/28/23 Page 18 of 21

judge was biased in favor of the prosecution and against him. The basis for Hammonds’ claim is

that the trial judge sustained an objection by the prosecution with respect to a somewhat confusing

cross-examination of the victim by defense counsel.

“[Jjudicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555

(1994). Here, the state appellate court correctly pointed out that the trial judge “was merely

attempting to ensure accuracy in the proceedings” with respect to defense counsel’s crossexamination of a minor. Accordingly, this habeas claim is denied.

State court sentencing error (Issue V)

Hammonds contends that the trial court erred in calculating his sentencing

guidelines because 10 points were improperly assessed under offense variable (OV) 10.

The

Michigan Court of Appeals concluded that, “Ten points are properly scored under OV 10 where

‘[t]he offender exploited a victim’s physical disability, mental disability, youth or agedness, or a

domestic relationship, or the offender abused his or her authority status.’ MCL 777.40(1 )(b).”

Hammonds, 2018 WL 6004694 at *4.

This claim does not present an issue cognizable under § 2254. Federal habeas

review is limited to deciding whether a conviction violated the Constitution, laws, or treaties of

the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). “A federal court may not issue the

writ on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984).

Federal habeas corpus relief does not lie for errors of state law, which includes the state’s

computation of a petitioner’s prison term. Kipen v. Renico, 65 Fed. Appx. 958,959 (6th Cir. 2003),

citing Estelle, 502 U.S. at 68. See Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) (alleged

violation of state law with respect to sentencing is not subject to federal habeas relief). “As long

as the sentence remains within the statutory limits, trial courts have historically been given wide

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1264 Filed 09/28/23 Page 19 of 21

discretion in determining ‘the type and extent of punishment for convicted defendants.”’ Id. at

301, quoting Williams v. New York, 337 U.S. 241, 245 (1949).

As discussed, the trial court sentenced Hammonds to a term of 14 to 60 years

imprisonment. There is no evidence that petitioner’s sentence exceeded the statutory limits. The

jury convicted petitioner of CSC-1II which “is a felony punishable by imprisonment for not more

than 15 years.” See M.C.L. § 750.520d(2). The Court enhanced petitioner’s sentence because he

was a fourth habitual offender pursuant to M.C.L. § 769.12 which provides in pertinent part that,

“If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum

term of 5 years or more or for life, the court. .. may sentence the person to imprisonment for life

or for a lesser term.” M.C.L. § 769.12(1 )(b). Accordingly, this habeas claim is denied.

Request for an arraignment (Issue VI)

Finally, Hammonds contends that he was scheduled to be arraigned on March 29,

2016, in the Circuit Court, that he was never arraigned at that or any other time thereafter, and that

he was denied his due process right to the compulsory process of an arraignment. Hammonds’

contention is without merit. The Michigan Court of Appeals addressed this issue as follows:

Finally, defendant, in his Standard 4 brief, argues that the trial court failed

to arraign him on the charge ultimately levied against him. The register of actions

in this case indicates that defendant was arraigned on March 29, 2016, at which

time he stood mute to the charge against him. The record makes clear that defendant

had notice of the charge and defendant’s claim that the trial court lacked jurisdiction

over him because of the alleged failure to arraign is without merit.

Hammonds, 2018 WL 6004694 at *5. The appellate court’s factual finding is presumed to be

correct. See 28 U.S.C. § 2254(e)(1); Sumner, 449 U.S. at 546-547. Petitioner has failed to rebut

this presumption. In this regard, the record includes Hammonds’ “Waiver of arraignment and

Election to stand mute or enter not guilty plea” in the 50th Circuit Court (Chippewa County)

(March 29, 2016) (ECF No. 11-5, PageID.285). The waiver reflects that Hammonds “stands mute

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1265 Filed 09/28/23 Page 20 of 21

to the charge(s) and requests the court to enter a plea of not guilty” and that the Judge entered a

plea of not guilty on behalf of Hammonds. Id. Accordingly, this habeas claim is denied.

Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if the petitioner has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of

a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, the

district court must “engage in a reasoned assessment of each claim” to determine whether a

certificate is warranted. Id. Each issue must be considered under the standards set forth by the

Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). See Murphy, 263 F.3d at 467.

Consequently, this Court has examined each of Hammonds’ claims under the Slack standard. To

warrant a grant of the certificate under Slack, 529 U.S. at 484, “[t]he petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Id. “A petitioner satisfies this standard by demonstrating that. . . jurists of

reason could conclude the issues presented are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court

may not conduct a full merits review, but must limit its examination to a threshold inquiry into the

underlying merit of the petitioner's claims. Id.

Here, the Court finds that reasonable jurists could not conclude that this Court’s

dismissal of Hammonds’ claims was debatable or wrong. Therefore, the Court will deny

Hammonds a certificate of appealability. Finally, although Hammonds has failed to demonstrate

that he is in custody in violation of the Constitution and has failed to make a substantial showing

Case l:20-cv-00592-RSK ECF No. 35, PagelD.1266 Filed 09/28/23 Page 21 of 21

of the denial of a constitutional right, the Court does not conclude that any issue he might raise on

appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).

VI.

Conclusion

The Court will enter a judgment dismissing the petition and an order denying a

certificate of appealability.

Dated: September 28, 2023

/s/ Ray Kent

RAY KENT

United States Magistrate Judge

APPENDIX C

Order

Michigan Supreme Court

Lansing, Michigan

September 10, 2019

Bridget M. McCormack,

ChiefJustice

David F. Viviano,

159084 & (67)

ChiefJustice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

SC: 159084

COA: 336958

Chippewa CC: 16-002031 -FH

BILLY JOE HAMMONDS,

Defendant-Appellant.

On order of the Court, the application for leave to appeal the November 15, 2018

judgment of the Court of Appeals is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by this Court. The motion to

issue a writ of superintending control is DENIED.

:€

v3>

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

September 10, 2019

b0904

Clerk

APPENDIX D

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

UNPUBLISHED

November 15, 2018

Plaintiff-Appellee,

No. 336958

Chippewa Circuit Court

LC No. 16-002031-FH

BILLY JOE HAMMONDS,

Defendant-Appellant.

Before: Riordan, P.1, and Ronayne Krause and Swartzle, JJ.

Per Curiam.

Defendant appeals as of right his conviction for third-degree criminal sexual conduct

(CSC-III) (victim at least 13 and under 16 years of age), MCL 750.520d(l)(a). We affirm.

I. BACKGROUND

AM was 15 years old in the summer of 2015. At that time, AM was enrolled in a driver’s

education course that was taught across the street from the apartment of her adult cousin, TL. As

a result, AM spent occasional nights at TL’s apartment to reduce the travel time necessary to

attend the course. TL had an on-again, off-again romantic relationship with defendant, who was

26 years old.

According to AM, she met defendant while staying with TL. AM testified that defendant

would flirt with her and put his hand on her knee and that she liked his tattoos. Approximately

one week after they met, defendant and AM were watching a movie with TL, who eventually

went to bed alone. Defendant laid on the couch and asked AM to lie next to him. When AM

complied, defendant put his hands down her pants and she put her hands down his. The two then

engaged in sexual intercourse.

Sometime after the act, defendant and AM exchanged communications via Facebook’s

Messenger application. AM sent a message to defendant saying that she was “legal” and

attached a picture of her driver’s permit. Defendant responded, ‘Not for sex though.” AM

replied, “Just because I ain’t legal doesn’t mean shit.” Defendant sent the message “ha ha” in

response. AM then followed up with, “Just saying didn’t stop us before.” Defendant replied,

“Ha ha, yup.” Defendant told AM to keep their sexual encounter a secret. Even so, AM became

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aware that defendant was telling others of the incident. AM sent defendant a message

confronting him and defendant replied, “[W]ell there ain’t shit to tell.”

AM told a friend, MC, of her encounter with defendant. AM also confessed to TL, who

indicated to AM that she was already aware of the encounter. MC told her mother, and AM’s

mother was alerted. AM’s mother confronted AM and TL in the presence of defendant’s cousin,

who also occasionally stayed at the apartment. AM initially denied having sex with defendant,

and explained at trial that she did not want to admit the act to her mother. Nevertheless, AM’s

mother examined AM’s phone and discovered screenshots of the communications exchanged

between the two. Eventually, AM admitted that the encounter did occur.

AM, her mother, and her mother’s husband filed a police report. After AM’s classmates

learned about the encounter and investigation, AM v/as bullied to the point where she refused to

go to school. Defendant was interviewed by the police, and denied having sex with AM. Later,

an arrest warrant was issued for defendant. When police arrived to execute the warrant,

defendant was spotted leaving the building with a woman. Defendant was arrested and placed in

the back seat of a police cruiser, where he volunteered information without being questioned.

Defendant explained that he was attempting to leave his apartment because he heard that the

police were on their way by using a police scanner and “didn’t want to deal with the police.”

Defendant also stated that he thought the police were called only because he and the woman

were making too much noise. When defendant was informed that he was being arrested on the

basis of an arrest warrant for CSC charges, defendant stated that a 16-year-old girl that he did not

know said that they had sex.

The jury found defendant guilty of CSC-III, and he was sentenced as a fourth-offense

habitual offender, MCL 769.12, to 14 to 60 years of imprisonment. Following his conviction,

defendant moved this Court to remand this case for presentation of his claims of ineffective

assistance of counsel at an evidentiary hearing. This Court granted the motion.1 The trial court

then held an evidentiary hearing and denied defendant’s claims of ineffective assistance of

counsel.

This appeal followed.

II. ANALYSIS

Prosecutorial Misconduct. On appeal, defendant first raises two claims of prosecutorial

misconduct. Prosecutorial misconduct issues are decided on a case-by-case basis. People v

Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002). “We review the prosecutor’s

statements in context to determine whether the defendant was denied a fair and impartial trial.”

Id. The prosecutor’s statements “are to be evaluated in light of defense arguments and the

relationship the comments bear to the evidence admitted at trial.” People v Dobek, 274 Mich

App 58, 64; 732 NW2d 546 (2007). Generally, prosecutors are given great latitude regarding

People v Hammonds, unpublished order of the Court of Appeals, issued October 23, 2017

(Docket No. 336958).

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their arguments and are “free to argue the evidence and reasonable inferences from the evidence

as they relate to their theory of the case.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314

(2009).

First, defendant contends that the prosecutor improperly shifted the burden of proof to

defendant during her rebuttal closing argument. Defense counsel argued in her closing argument

that the prosecutor’s failure to present TL or defendant’s cousin as a witness meant that they

would testify in defendant’s favor. The prosecutor responded in her rebuttal that, if TL or the

cousin had testimony that could help defendant’s case, he could have called them as witnesses.

Ordinarily, “a prosecutor may not comment on the defendant’s failure to present evidence

because it is an attempt to shift the burden of proof.” People v Fyda, 288 Mich App 446, 464;

793 NW2d 712 (2010). A prosecutor’s comment on a defendant’s failure to call a witness,

however, does not shift the burden of proof unless the prosecutor’s comment implicates the

defendant’s right not to testify. People v Fields, 450 Mich 94, 112; 538 NW2d 356 (1995).

Rather, such comments merely point out weaknesses in the defendant’s case. Id. The Fields

Court explained that

The defendant’s decisions about evidence other than his own testimony do not

implicate the privilege [against self-incrimination], and a comment on the

defendant’s failure to call a witness does not tax the exercise of the privilege. It

simply asks the jury to assess the value of the existing evidence in light of the

countermeasures that were (or were not) taken. [Id. at 114-115 (cleaned up).]

In this case, the prosecutor’s comment regarding defendant’s failure to call a witness did

not impinge defendant’s right not to testify at trial. No statements were offered by either party

that brought defendant’s right not to testify before the jury’s attention, and, regardless, defendant

ultimately did testify in his own defense. The challenged statement was not an improper attempt

to shift the burden of proof; rather, it was a proper explanation of the parties’ rights to present

witnesses in response to defense counsel’s closing argument. People v Watson, 245 Mich App

572, 593; 629 NW2d 411 (2001). Moreover, the trial court properly instructed the jury that the

prosecutor bore the burden of proof, meaning that defendant cannot show prejudice from the

challenged comment. People v Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008). Thus,

defendant’s first claim of prosecutorial misconduct is without merit.

Defendant also argues that the prosecutor engaged in misconduct when she and her

witnesses repeatedly referred to AM as “the victim” despite an order from the trial court to refer

to her as “the complaining witness” instead. We disagree.

In this case, the trial court made a pretrial ruling that the parties and their witnesses were

to refrain from using the word “victim” as opposed to “complaining witness.” Over the course

of trial, the prosecutor used the word “victim” four times when specifically referencing AM and

three more times without specifically referencing AM. Moreover, two of the prosecutor’s

witnesses—both police officers—referred to AM as “the victim” in their testimonies.

Having reviewed the record, we are unable to conclude that the use of the term “victim”

denied defendant a fair trial. Although the prosecutor did refer to AM as the victim on occasion,

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she usually quickly corrected herself to use a different moniker. There is no indication that the

prosecutor knew that her witnesses would refer to AM as the victim or that she intentionally

elicited such a response and, although the term victim was used at other points at trial, these

references were not directed towards AM. Moreover, the trial court specifically instructed the

jury that AM was to be referred to as the “complaining witness” rather than the “victim.” This

instruction cured any prejudice to defendant, rendering his second claim of prosecutorial

misconduct without merit. People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).

Judicial Partiality. Defendant next argues that reversal is warranted because the trial

court demonstrated that it was biased in favor of the prosecutor when it held that AM’s responses

to defense counsel’s questions were “misunderstandings” rather than inconsistencies. Criminal

defendants have a right to a fair and impartial jury trial. People v Stevens, 498 Mich 162, 170;

869 NW2d 233 (2015). “A trial judge’s conduct deprives a party of a fair trial if a trial judge’s

conduct pierces the veil of judicial impartiality.” Id. at 170-171. “A judge’s conduct pierces this

veil and violates the constitutional guarantee of a fair trial when, considering the totality of the

circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by

creating the appearance of advocacy or partiality against a party.” Id. at 171.

During the first day of trial, defense counsel began questioning AM about her prior

statements, attempting to emphasize inconsistencies. While cross-examining AM, the following

exchange took place:

Q. Do you recall telling Detective Harp that it was [TL] and [defendant]

that were dating at the time?

A. They were sleeping together, yea.

Q. Do you recall testifying back in March that it was [another person] and

[TL] that were dating at the time?

A. Yea.

Q. And now today it’s they’re both dating her?

A. No, I don’t think that either one of them are dating her now. But back

in the summer they were both bouncing around with her, yea.

Q. So that would [be] three inconsistent statements that you’ve given us.

The prosecutor objected, arguing that defense counsel’s statement was improper and that AM’s

last statement did not constitute an inconsistency. The trial court sustained the objection, stating,

I don’t think it’s inconsistency but it might just be some misunderstanding. I

don’t think it’s intentional. I think it’s just mistaken so if you want to rephrase

the question. I know what you’re trying to get at .... But for that point I’ll

sustain the objection.

-4-

Defense counsel then asked whether AM’s previous indication that TL and defendant were

dating was consistent with a previous indication that TL and another person were dating. AM

stated that she did not recall testifying that TL and the other person were “dating.” Rather, she

remembered stating that they were sleeping together.

Having reviewed the challenged ruling, we are unable to conclude that the trial court

pierced the veil of judicial impartiality. The trial court was not ruling definitively that the

witness did not testify inconsistently. Rather, taken in context, the trial court was merely

pointing out that defense counsel and the minor witness appeared to be misunderstanding each

other, specifically with regard to the use of the word “today.” The trial court did not preclude the

line of questioning altogether, but rather encouraged defense counsel to continue exploring the

issue. Defense counsel did so, specifically targeting the alleged inconsistency between AM’s

trial testimony and previous statements. Thus, it is clear that the trial court was merely

attempting to ensure accuracy in the proceedings and did not abandon its veil of impartiality.

Defendant’s claim is without merit.

Offense Variable 10. Defendant next argues that 10 points were improperly assessed

under offense variable (OV) 10. Ten points are properly scored under OV 10 where “[t]he

offender exploited a victim’s physical disability, mental disability, youth or agedness, or a

domestic relationship, or the offender abused his or her authority status.” MCL 777.40(l)(b).

At the time of the encounter, AM was 15 years old and was temporarily staying with her

young-adult cousin, TL. Defendant was 11 years AM’s senior and groomed AM by flirting with

her and touching her while she was outside of her parent’s care. Defendant waited to pursue the

sexual encounter until after TL had gone to bed, when AM would be without any other

immediate means of leaving the apartment. Aware of his wrongful conduct, defendant instructed

AM not to tell anyone about the encounter. Thus, the record is clear that defendant intentionally

pursued AM and was successful in doing so in large part because AM was a vulnerable minor.

See People v Cannon, 481 Mich 152, 158-159; 749 NW2d 257 (2008). The trial court properly

assessed 10 points under OV 10.

Ineffective Assistance of Counsel. Defendant claims that his defense counsel was

constitutionally deficient. A preserved claim of ineffective assistance of counsel is “a mixed

question of law and fact.” People v Hunter, 493 Mich 1015; 829 NW2d 871 (2013). We review

questions of law de novo and “the trial court’s factual findings for clear error. Clear error exists

if the reviewing court is left with a definite and firm conviction that the trial court made a

mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011) (cleaned up).

An appellate court is required to reverse a defendant’s conviction when defense counsel

“made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland v Washington, 466 US 668, 687; 104 S Ct

2052; 80 L Ed 2d 674 (1984). A defendant requesting reversal of an otherwise valid conviction

bears the burden of proving “(1) the performance of his counsel was below an objective standard

of reasonableness under prevailing professional norms and (2) a reasonable probability exists

that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would

have been different.” People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d

19 (2000).

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To prove the first prong, “[t]he defendant must overcome a strong presumption that

counsel’s assistance constituted sound trial strategy.” People v Stanaway, 446 Mich 643, 687;

521 NW2d 557 (1994). “Decisions regarding what evidence to present and whether to call or

question witnesses are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App

74, 76; 601 NW2d 887 (1999). “This Court does not second-guess counsel on matters of trial

strategy, nor does it assess counsel’s competence with the benefit of hindsight.” People v

Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Regarding the second prong, a

defendant is prejudiced if there is a reasonable probability that, “but for defense counsel’s errors,

the result of the proceeding would have been different.” People v Heft, 299 Mich App 69, 81;

829 NW2d 266 (2012).

Defendant first argues that he was denied his right to effective assistance of counsel when

defense counsel failed to call TL as a witness at trial. Defendant asserts that TL’s testimony

would have corroborated his version of the facts and cast significant doubt on the veracity of

AM’s allegations. The record shows, however, the defendant counsel attempted to contact and

subpoena TL several times for trial. After defense counsel, county officials, and the police tried

and failed to reach TL, it was reasonable for defense counsel to believe that TL would not be

available to provide testimony at trial. Thus, defendant has failed to show that his defense

counsel’s performance was deficient.

Defendant, in his Standard 4 brief, also argues that defense counsel was ineffective for

failing to inform him of the possible penalty that would have followed from accepting an offered

guilty plea. Specifically, defendant alleges that he was offered a plea for one count of CSC-III as

a second-offense habitual offender, and that defense counsel informed him that his minimum

sentencing range under that plea would have been between 78 and 162 months of imprisonment.

Defendant contends that the correct range would have been 51 to 106 months, and that if defense

counsel had advised him accordingly, he would have accepted the offered guilty plea.

Assuming arguendo that defense counsel did advise defendant of a 78-to-162-month

guidelines range, were are unable to conclude that such advice was unreasonable. Indeed, the

record shows that, given the resolution of certain factual questions at issue, defendant’s

guidelines range could have been 78 to 162 months. Defendant was assessed 47 points for prior

record variables and 10 points for offense variables. We have already concluded that the trial

court properly scored OV 10 at 10 points. Moreover, an argument could be made for an

assessment of an additional 60 OV points. OV 4 could have been scored at 10 points for the

psychological injury AM suffered after being bullied by her classmates for the encounter, MCL

777.34(2); OV 11 could have been scored at 25 points given evidence that defendant penetrated

AM during the encounter, MCL 777.41 (l)(b); and OV 13 could have been scored at 25 points

given that evidence existed that defendant was charged with committing three other crimes

within five years of committing the instant offense, MCL 777.43(l)(c). Had the trial court not

resolved these determinations in defendant’s favor, defendant’s guidelines range would have

been 78-to-162 months. See MCL 777.63; MCL 777.21(3)(a). Thus, defendant’s second

ineffective-assistance claim is also without merit.

Arraignment. Finally, defendant, in his Standard 4 brief, argues that the trial court failed

. to arraign him on the charge ultimately levied against him. The register of actions in this case

indicates that defendant was arraigned on March 29, 2016, at which time he stood mute to the

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4-v

charge against him. The record makes clear that defendant had notice of the charge and

defendant’s claim that the trial court lacked jurisdiction over him because of the alleged failure

to arraign is without merit.

Affirmed.

/s/ Michael J. Riordan

/s/ Amy Ronayne Krause

/s/ Brock A. Swartzle

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.