Petition for Writ of Certiorari — Ramon Caldwell, Petitioner v. Bryan Morrison, Warden

Supreme Court briefDec 2, 2024

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TABLE OF CONTENTS APPENDICES

Appendix A- ORDER of the United States Court of Appeals for the 6th Circuit.

Appendix B: ORDER of the Federal District Court, W.D. of MI S.D., Habeas

Corpus Petition.

Appendix C- ORDER of the Michigan Court of Appeals,

Appendix D: MLCS § 769.13, MSA 28.1085, 1994 Public Act 110 § 2, Amendments.

Appendix E- 1994 Mi. HB 5306

Appendix A:

As of: November 12, 2024 9:09 PM Z

\Caldwell v. Morrison }

United States Court of Appeals for the Sixth Circuit

September 12, 2024, Filed

No. 24-1376

Reporter

2024 U.S. App. LEXIS 23326 *

RAMON CALDWELL, Petitioner-Appellant, v. BRYAN

MORRISON, Warden, Respondent-Appellee.

Prior History: Caldwell v. Morrison. 2024 U.S. Dist.

LEXIS 57487. 2024 WL 1340550 (W.D. Mich.. Mar. 29.

2024)

Core Terms

Jurists, amended petition, trial counsel, phone call,

misconduct, render ineffective assistance, motion to

amend, sentence, jail, ineffective assistance, original

petition, district court, appellate counsel, trial court,

other-acts, preserved

Counsel: [*1] RAMON CALDWELL, PetitionerAppellant, Pro se, Coldwater, Ml.

For BRYAN MORRISON, Warden, Respondent Appellee: Andrea M. Christensen-Brown, Office of the

Attorney General, Lansing, Ml.

Judges: Before: MOORE, Circuit Judge.

Opinion

ORDER

Ramon Caldwell, a pro se Michigan prisoner, appeals a

district court's judgment denying his habeas corpus

petition filed under 28 U.S.C. 6 2254. He has applied for

a certificate of appealability (COA). See Fed. R. App. P.

22(h).

Despite his protestations of innocence at trial as to past

and present crimes, a jury convicted Caldwell of two

counts of first-degree home invasion, assault with intent

to commit sexual penetration of "BW," and indecent

exposure. On August 15, 2016, the trial court sentenced

him as a fourth-offense habitual offender to 18 to 30

years in prison for the home-invasion counts and to

lesser terms for the other offenses. See Mich. Comp.

Laws § 769.12. The Michigan Court of Appeals vacated

one count of home invasion but affirmed the other

convictions; the Michigan Supreme Court denied leave

to appeal on September 12, 2018. People v. Caldwell.

No. 334322. 2017 Mich. Add. LEXIS 1823. 2017 WL

5503781 IMich. Ct. Add. Nov. 16. 2017) (per curiam),

perm. app. denied, 503 Mich. 859, 917 N.W.2d 63

(Mich. 2018). On November 15, 2019, Caldwell

unsuccessfully moved for relief from judgment. The

Michigan Court of Appeals denied his application for

leave to appeal, as [*2] did the Michigan Supreme

Court on June 28, 2022. People v. Caldwell, 509 Mich.

1055, 975 N.W.2d 456 (Mich. 2022) (mem.).

In his $ 2254 petition, placed in the prison mailing

system on July 22, 2022, Caldwell raised the following

claims:

^ijThe trial court abused its discretion by admitting

other-acts evidence without determining whether

there was good cause to excuse the prosecutor’s

failure to give pretrial notice of his intent to

introduce the evidence.

^Tyrhe prosecution committed misconduct during

closing argument by falsely alleging that Caldwell

stated in a jail phone call that he hoped that police

would not fingerprint the door.

£3^ The prosecution committed misconduct by

belittling Caldwell and his girlfriend and vouching

fo’ BW's credibility.

^•a). Appellate counsel rendered ineffective

assistance by (i) raising the issue of whether the

prosecutor argued "facts not in evidence," rather

than the preserved issue of whether there was "no

evidence" of Caldwell's jail phone calls that had

been admitted; and (ii) failing to argue ineffective

assistance of trial counsel.

£f(h). Trial counsel rendered ineffective assistance

by (i) failing to introduce recordings of Caldwell's jail

phone calls, (ii) objecting that there was "no

Page 2 of 5

2024 U.S. App. LEXIS 23326, *2

evidence" admitted about the [*3] calls, instead of

objecting to the prosecutor arguing "facts not in

evidence," and (iii) advising Caldwell to lie under

oath regarding past crimes.

post-marked October

Pi1 © iBt*lit«lri 1® SUSSBS) fife |

21, 2022, Caldwell additionally asserted that:

jurisdictional defect occurred when the trial

court did not let the jury determine Caldwell's guilt

offender

sentence

the

fourth-habitual

enhancement;

^jjhe was denied his rights under the Sixth and

Fourteenth Amendments because the jury form did

not include the fourth-habitual offender sentence

enhancement; and

MlMichigan Compiled Laws $<S 769.12 and 769.13

and "MSA 28.1085, as amended by 1994 P.A. 110”

are unconstitutional and fraudulent.

The district court directed Caldwell to submit a proposed

amended petition, stated that it would hold his motion to

amend in abeyance until he did so, and advised him that

an amended pleading would supersede his original.

Caldwell next filed a pleading captioned as an amended

petition, asserting the claims raised in his original

petition and his motion to amend. The court directed the

clerk to file the pleading as a proposed amended

petition and denied Caldwell's motion to amend because

his new claims were untimely, unexhausted, and

meritless.

The district court denied Caldwell's petition [*4] on the

merits and declined to issue a COA. Caldwell filed a

motion to alter or amend the judgment, arguing that (1)

the court had granted his motion to file an amended

petition and therefore erred by considering his

superseded, original petition, (2) the court did not give

the State the proper amount of time to respond to the

amended petition, and he was unable to file a reply, and

(3) the court erred by determining that his new claims

lacked merit. See Fed. R. Civ. P. 59(e). The district

court denied the motion as meritless. Caldwell timely

appealed from both the underlying judgment and the

denial of his post judgment motion.

In his COA application, Caldwell raises the claims from

his original petition, his motion to amend, and his Rule

59(e) motion.

Standard of Review

An individual seeking a COA is required to make a

substantial showing of the denial of a constitutional

right. See 28 U.S.C. 8 2253(c)(2). "A petitioner satisfies

this standard by demonstrating that jurists of reason

could disagree with the district court's resolution of his

constitutional claims or that jurists could conclude the

issues

presented

are

adequate

deserve

encouragement to proceed further." Miller-El v. Cockrell.

537 U.S. 322. 327. 123 S. Ct. 1029. 154 L. Ed. 2d 931

(2003).

When the appeal concerns a district court's procedural

ruling, a [*5] COA should issue if the petitioner

demonstrates "that jurists of reason would find it

debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was

correct in its procedural ruling." Slack v. McDaniel. 529

U.S. 473. 484. 120 S. Ct. 1595. 146 L. Ed. 2d 542

(2000).

Other-Acts Evidence

In his first claim, Caldwell asserted that the trial court

abused its discretion by admitting other-acts evidence

without determining whether there was good cause to

excuse the prosecutor's failure to give pretrial notice of

his intent to introduce the evidence. The other-acts

evidence concerned Caldwell's commission of a similar

home invasion with intent to sexually assault a different

woman. See Caldwell. 2017 Mich. Add. LEXIS 1823,

2017 WL 5503781, at *5.

Jurists of reason would agree with the district court's

conclusion that the other-acts, i.e., bad-acts, claim is not

cognizable on habeas review. Claims regarding state

evidentiary law are generally non-cognizable on habeas

review, and Caldwell did not make a substantial

showing that the admission of evidence was

fundamentally unfair. See Estelle v. McGuire. 502 U.S.

62. 67-68. 112 S. Ct. 475. 116 L. Ed. 2d 385 (1991):

Moreland v... Bradshaw. 699 F.3d 908. 923 (6th Cir.

2012). "There is no clearly established Supreme Court

precedent which holds that a state violates due process

by permitting propensity evidence in [*6] the form of

other bad acts evidence." Buah v. Mitchell. 329 F.3d

496. 512 (6th Cir. 2003): see also Boiai v. Berahuis. 702

F. Add'x 315. 320 (6th Cir. 2017). Likewise, "the

Supreme Court has never held (except perhaps within

the capital sentencing context) that a state trial court's

admission of relevant evidence, no matter how

prejudicial, amounted to a violation of due process."

Page 3 of 5

2024 U.S. App. LEXIS 23326, *6

Blackmon y. Booker. 696 F.3d 536. 551 (6th Cir. 2012).

untrue description of a jail phone call and his reference

to Caldwell's "crocodile tears" did not have a substantial

and injurious effect on the verdict. At trial,

Prosecutorial Misconduct Claims

In his second claim, Caldwell asserted that the

prosecution committed misconduct during closing

argument by falsely alleging that Caldwell stated in a jail

phone call that he hoped that police would not

fingerprint the door. The State conceded on direct

appeal that the police officers did not testify that

Caldwell had made this statement. See Caldwell. 2017

Mich. Add. LEXIS 1823. 2017 WL 5503781. at *2.

In his third claim, Caldwell asserted that the prosecution

committed misconduct by referring to Caldwell's

girlfriend Alana Young as a pimp and opining that

Caldwell cried "crocodile tears" during trial. Caldwell

further contended that the prosecution improperly

vouched for BW's credibility by stating, "Look at the

believable evidence. Does it show guilt beyond a

reasonable doubt? Absolutely. The young lady was

telling you the truth and you believe her, submitted by

the facts."

In assessing a claim of prosecutorial misconduct, "[t]he

relevant [*7] question is whether the prosecutors'

comments 'so infected the trial with unfairness as to

make the resulting conviction a denial of due process.'"

Darden v. Wainwriaht. 477 U.S. 168. 181. 106 S. Ct.

2464. 91 L. Ed. 2d 144 (1986) (quoting Donnelly v.

DeChristoforo. 416 U.S. 637, 643, 94 S. Ct. 1868. 40 L.

Ed. 2d 431 (1974)). "[T]he touchstone of due process

analysis in cases of alleged prosecutorial misconduct is

the fairness of the trial, not the culpability of the

prosecutor." Smith v. Phillips. 455 U.S. 209. 219. 102 S.

Ct. 940. 71 L. Ed. 2d 78 (1982Y. see also Richardson y.

Palmer. 941 F.3d 838. 848 (6th Cir. 2019).

"[Pjrosecutors 'must be given leeway to argue

reasonable inferences from the evidence.’" Leonard v.

Warden. Ohio State Penitentiary, 846 F.3d 832. 852

(6th Cir. 2017) (quoting Byrd v. Collins. 209 F.3d 486.

535 (6th Cir. 2000)). A prosecutor’s misconduct merits

habeas relief only when it "had substantial and injurious

effect or influence in determining the jury's verdict."

Brecht v. Abrahamson, 507 U.S. 619. 623. 113 S. Ct.

1710. 123 L. Ed. 2d 353 (1993) (quoting Kotteakos v.

United States. 328 U.S. 750. 776. 66 S. Ct. 1239. 90 L.

Ed. 1557 (1946)).

Jurists of reason would agree that, in light of both the

substantial evidence against Caldwell and the isolated

nature of the prosecution's comments, the prosecutor's

BW identified defendant as the partially undressed

man who tapped her on her shoulder in the middle

of the night in her bedroom; BW's mother testified

that she had never seen BW as afraid as BW was

that night; Deputy Nevins testified that BW, upon

seeing defendant in his vehicle, [*8] wanted to get

away from him immediately; bottles of shampoo

and soap from the bathroom in BW's house were

found in defendant's vehicle; defendant told Deputy

Nevins that he had not been at BW’s house, but

then later claimed that he had been invited in by

BW; and, in a similar case, defendant broke into

WAB's house and woke her in the middle of the

night, telling her that he was going to "stick [his]

dick" in her.

See Caldwell. 2017 Mich. Add. LEXIS 1823. 2017 WL

5503781, at *2 (alteration in original). The volume of

evidence against Caldwell presented at trial therefore

obviates any concern that the prosecution's conduct had

substantial and injurious effect on the jury’s verdict.

Next, jurists of reason would agree that the prosecution

reasonably inferred from the evidence that Young was a

pimp. See Leonard, 846 F.3d at 852. At trial, "BW

testified that Young asked her to have a threesome with

Young and defendant. Similarly, Young testified that she

tried to convince BW to have a threesome with her and

defendant and that there was talk of paying BW for sex."

Caldwell. 2017 Mich. Aoo. LEXIS 1823. 2017 WL

5503781. at *7. '

Jurists of reason also would agree that the prosecution's

comment about the truthfulness of BWs testimony does

not merit habeas relief. Although a prosecutor is not

permitted to vouch for the credibility of a [*9] witness,

"the prosecutor may argue that the jury should arrive at

a particular conclusion based on the evidence." United

States v. Reid. 625 F.3d 977. 985 (6th Cir. 2010). Here,

the prosecutor indicated that the jury should believe BW

based on the facts. But even if the prosecutor had

improperly vouched for BW, the trial court instructed the

jury that the statements and arguments of the lawyers

were not evidence. Jurors are presumed to follow

instructions, and a curative instruction such as the one

given here can mitigate the effect of an improper

comment by the prosecution. See Weeks v. Anaelone.

528 U.S. 225. 234. 120 S. Ct. 727. 145 L. Ed. 2d 727

(2000): Donnelly. 416 U.S. at 644.

Page 4 of 5

2024 U.S. App. LEXIS 23326, *9

Ineffective Assistance of Trial Counsel

Caldwell asserted that trial counsel rendered ineffective

assistance by (i) failing to introduce recordings of

Caldwell's jail phone calls as evidence that he never

admitted to breaking into the house or expressed his

hope that the police would not fingerprint the door, (ii)

objecting that there was "no evidence" admitted about

the calls, instead of objecting to the prosecutor arguing

"facts not in evidence," and (iii) advising Caldwell to lie

under oath regarding past crimes.

Jurists of reason would agree that trial counsel did not

render ineffective assistance. To establish ineffective

assistance, a defendant "must show [*10]

that

counsel's performance was deficient" and prejudiced the

defense, i.e., there must be "a reasonable probability

that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Strickland v.

Washington, 466 U.S. 668, 687. 694, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). When denying Caldwell's

motion for relief from judgment, the post-conviction court

held that the recordings of the phone calls were

inadmissible hearsay. Because an attempt to introduce

the calls would not have succeeded, trial counsel did not

render deficient performance. See Tackett v. Trierweiler.

956 F.3d 358. 375 (6th Cir. 2020). Next, trial counsel's

failure to raise a different type of objection to the

prosecutor's false quotation did not prejudice Caldwell

because there was no reasonable probability that the

result of the trial would have been different. See

Strickland. 466 U.S. at 696: Dixon v. Houk, 737 F.3d

1003. 1009 (6th Cir. 2013). As indicated above,

overwhelming evidence against Caldwell was presented

at trial. Likewise, counsel's alleged advice to Caldwell to

lie under oath regarding past crimes is not credible

because Caldwell testified under penalty of perjury.

"Solemn declarations in open court carry a strong

presumption of verity." Blackledge v. Allison. 431 U.S.

63. 74. 97 S. Ct. 1621. 52 L. Ed. 2d 136 (1977).

Furthermore, Caldwell did not demonstrate that the

outcome of his trial would likely have been different if he

had testified truthfully.

Ineffective f*111 Assistance of Appellate Counsel

Caldwell asserted that appellate counsel rendered

ineffective assistance by (i) raising the issue of whether

the prosecutor argued "facts not in evidence" with

respect to the false quotation, rather than the preserved

issue of whether there was "no evidence" of Caldwell's

jail phone calls that had been admitted, and (ii) failing to

argue ineffective assistance of trial counsel.

Jurists of reason would agree that appellate counsel did

not render ineffective assistance. Appellate counsel's

failure to raise the preserved issue about the

prosecutor's false quotation did not prejudice Caldwell

because there was no reasonable probability that he

would have prevailed on appeal had the preserved

issue been raised. See Strickland. 466 U.S. at 696:

Chase v. MaCaulev. 971 F.3d 582. 595 (6th Cir. 2020).

The Michigan Court of Appeals in fact considered both

the preserved and unpreserved issues and concluded

that the prosecutor’s false quotation did not affect the

outcome of the trial. Next, appellate counsel did not

render ineffective assistance by failing to raise the

aforementioned issues of ineffective assistance of trial

counsel. "[Cjounsel cannot be ineffective for a failure to

raise an issue that lacks merit." Sutton v. Bell. 645 F.3d

752. 755 (6th Cir. 20111 (quoting Greer v. Mitchell. 264

F.3d 663. 676 (6th Cir. 2001)).

Denial of Motion f*121 to Amend

In his motion to amend, Caldwell raised three claims

challenging his habitual-offender sentence and the

habitual-offender statutes as violative of Apprendi v.

New Jersey. 530 U.S. 466. 120 S. Ct. 2348. 147 L. Ed.

2d 435 (2000). and progeny.

Jurists of reason would agree that Caldwell's proposed

claims are time-barred. A proposed amendment to a

habeas petition must comply with the statute of

limitations or relate back to the original claims. See

Mavle v. Felix. 545 U.S. 644. 650. 125 S. Ct. 2562. 162

L. Ed. 2d 582 12005). Under 28 U.S.C. 6 2244(d)(1). a 5

2254 petition must be filed within one year after the

latest of certain events, including "the date on which the

judgment became final by the conclusion of direct

review or the expiration of the time for seeking such

review. 28 U.S.C. 6 2244(d)(1). A prisoner may

statutorily toll the limitations period by properly filing a

state application for post-conviction review. See 28

U.S.C. 8 2244(d)(2).

If a prisoner fails to timely file a 8 2254 petition, the

prisoner is entitled to equitable tolling of the limitations

period upon a showing that he was diligently pursuing

his rights but was prevented from timely filing the

petition by an extraordinary circumstance. Holland v.

Florida. 560 U.S. 631. 649. 130 S. Ct. 2549. 177 L. Ed.

2d 130 (2010V. Jones v. United States. 689 F.3d 621.

Page 5 of 5

2024 U.S. App. LEXIS 23326, *12

627 (6th Cir. 2012). Alternatively, the untimeliness of a

petition may be excused on the ground of actual

innocence where a petitioner "show[s] that it is more

likely than not that no reasonable juror would have

convicted [*13] him in the light of the new evidence."

McQuiaain v. Perkins. 569 U.S. 383. 399. 133 S. Ct.

1924. 185 L Ed. 2d 1019 (2013) (quoting Schlup v.

Delo. 513 U.S. 298. 327. 115 S. Ct. 851. 130 L. Ed. 2d

808 11995)L

Caldwell does not contest that his proposed amended §

2254 petition was not filed within one year of the

conclusion of direct review as extended by the

pendency of his motion for relief from judgment. See 28

U.S.C. 8 2244(d)(1)(A). (d)(2). Next, he does not argue

that he is entitled to equitable tolling, and he does not

present any new evidence showing his innocence. Last,

his proposed petition does not relate back because it

raises new grounds for relief that are different in both

time and type from those in his original petition. See

Mavle. 545 U.S. at 650. Unlike his original claims, his

proposed claims assert sentencing error.

Additionally, jurists of reason would agree that Caldwell

did not make a substantial showing of the denial of a

constitutional right. A judge may find "the fact of a prior

conviction" during sentencing without violating the

Constitution. See Aeprendi. 530 U.S. at 490: Alexander

v. Rewerts. No. 18-2211. 2019 U.S. App. LEXIS 31750.

2019 WL 5306840. at *3 (6th Cir. Jan. 18. 2019)

(upholding Michigan habitual-offender enhancement).

Denial of Motion to Alter or Amend the Judgment

In his Rule 59(e) motion, Caldwell argued that (1) the

district court had granted his motion to file an amended

petition and therefore erred by considering his

superseded, original petition, (2) the court did not give

the State the proper [*14] amount of time to respond to

the amended petition, and he (Caldwell) was unable to

file a reply, and (3) the court erred by determining that

his proposed claims lacked merit.

Jurists of reason would agree that Caldwell did not

make a substantial showing of the denial of a

constitutional right. The district court did not grant his

motion to amend, and as discussed above, jurists of

reason would agree that his proposed claims were timebarred. Therefore, Caldwell's original petition was not

superseded, and there was no amended petition to

which the State could respond.

For these reasons, the court DENIES Caldwell's COA

application,

End of Document

Case l:22-cv-00700-HYJ-PJG

ECF No. 32, PagelD.1854 Filed 03/29/24 Page 1 of 35

Appendix B:

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

V'"

RAMON CALDWELL, JR.,

Petitioner,

Case No. 1:22-cv-700

Hon. Hala Y. Jarbou

BRYAN MORRISON,

Respondent.

/OPINION—7

This is a fratieas corouk action brought by a state prisoner under 28 U.S.C. § 2254.

Petitioner Ramon Caldwell, Jr. is incarcerated with the Michigan Department of Corrections at the

Lakeland Correctional Facility (ECF) in Coldwater, Branch County, Michigan. On June 16, 2016,

following a three-day jury trial in the Cass County Circuit Court, Petitioner was convicted of

criminal

sexual

conduct-assault

with

intent

commit

sexual

penetration

(CSC-assault), in violation of Mich. Comp. Laws § 750.520g, first-degree home invasion, in

violation of Mich. Comp. Laws § 750.110a, and indecent exposure, in violation of Mich. Comp.

Laws § 750.335a. On August 5, 2016, the court sentenced Petitioner as a fourth habitual offender,

Mich. Comp. Laws § 769.12, to prison terms of 8 to 30 years for CSC-assault, 18 to 30 years for

home invasion, and 363 days for indecent exposure. i

On July 29, 2022, Petitioner filed his initial habeas corpus petition in the United States

District Court for the Eastern District of Michigan. (ECF No. 1.) In an opinion and order (ECF

Petitioner has completed serving his sentence for indecent exposure and is no

pursuant to that conviction.

DEC 1 1 2024

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1855 Filed 03/29/24 Page 2 of 35

No. 3) entered on August 2, 2022, the Eastern District transferred the matter to this Court for

further proceedings. Petitioner’s petition asserts the following four grounds for relief:

Improper Admission of Evidence. The trial court abused its discretion

admitting 404(b) evidence without “Pretrial Notice” that was not excused

on “good cause” shown. Using a “res gestae” witness list exception and

failing to perform the required MRE 403 balancing test.

II.

Prosecution Argued Facts not in Evidence. The prosecution argued facts not

in evidence on three (3) separate occasions during closing arguments.

Defendant objected to the first instance, yet the prosecution continued to do

so, two more times.

III.

Prosecutorial Misconduct. The prosecutor committed misconduct during

trial, and closing arguments that deprived Defendant of Due Process right

to a fair trial. Using blatant, and egregious remarks that painted Defendant

in a horrible light Along with Al[a]na Young, his girlfriend at the time.

IV.

Ineffective Assistance of Appellate Counsel &, Ineffective Assistance of

Trial Counsel. Appellate Counsel was ineffective when arguing on Direct

Appeal the wrong issues. Causing Defendant to Waive[] this issue and

having tQufile a 6.500 motion. Nor* did Appellate Counsel raise the

Ineffective Assistance of trial counsel claim.

Trial counsel was Ineffective when failing to introduce to the jury phone

recordings from county jail. Also when objecting to “no evidence”,

admitted at trial when he should have objected to the “Arguing facts not inEvidence”. Further when advising defendant to “lie under oath” regarding

past crimes.

(Pet., ECF No. 1, PageID.5-10.)2 Respondent asserts that Petitioner’s grounds for relief are

2 After the Court entered an order (ECF No. 10) directing Respondent to file the state court record

and a response to the petition, Petitioner moved for leave to amend his habeas petition (ECF No.

11). That motion was initially denied on October 25, 2022. (ECF No. 13.) Petitioner filed an

objection (ECF No. 14), and in an order (ECF No. 17) entered on December 15, 2022, the Court

directed Petitioner to file a proposed amended petition. Petitioner filed his proposed amended

petition on January 10, 2023, purporting to add three new grounds to his initial petition. (ECF No.

18.) In an order (ECF No. 21) entered on February 7, 2023, the Court denied Petitioner leave to

amend_his petition to assert the proposed three new grounds for relief because those grounds were

nQnexh‘auste'd,vuntimely, and meritless.

■V •

’

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1856 Filed 03/29/24 Page 3 of 35

meritless.3 (ECF No. 23.) The Court concludes that Petitioner has failed to set forth a meritorious

federal ground for habeas relief and will, therefore, deny his petition for writ of habeas corpus.

Discussion

Factual Allegations

The Michigan Court of Appeals described the facts underlying Petitioner’s convictions as

follows:

BW[, the victim,] testified that, at approximately 4:00 a.m. on August 9, 2015, she

was awakened by a tap on her shoulder. BW heard someone say her name, and she

then saw [Petitioner], whom she recognized as the man dating her brother’s exwife, standing near her bedroom door. Because [Petitioner] was not wearing any

pants, BW could see his genitals. BW got out of bed, kicked [Petitioner] in the

groin, and ran screaming from her bedroom. BW’s screams awakened her mother,

who came running into the hall. [Petitioner] fled to the bathroom, and exited the

house through the bathroom window. BW called the police. When BW and her

mother went into the bathroom, they saw that bottles of soap and shampoo that were

kept on the windowsill were not there. Police found [Petitioner] less than a mile

from BW’s home, intoxicated and sleeping in his car. BW identified [Petitioner] as

the man who entered her home, and items from the bathroom were found in

[Petitioner’s] vehicle. In addition to facts surrounding the events at BW’s home,

the prosecutor also offered evidence that in 2003 defendant committed a similar

home invasion with intent to sexually assault WAB.

At trial, [Petitioner] admitted that he went to BW’s house, removed his pants, and

exited via the bathroom window, but he claimed that BW had invited him to the

house for consensual sex. The defense theory at trial was that BW invited

[Petitioner] over to have sex and/or to frame [Petitioner] for attempted rape to aid

3 Respondent also contends that Petitioner’s prosecutorial misconduct claims are procedurally

defaulted. (ECF No. 23, PageID.348.) However, a habeas corpus petition “may be denied on the

merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts

of the State.” See 28 U.S.C. § 2254(b)(2). Furthermore, the Supreme Court has held that federal

courts are not required to address a procedural default issue before deciding against the petitioner

on the merits. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel

giving the [other] question priority, for example, if it were easily resolvable against the habeas

petitioner, whereas the procedural-bar issue involved complicated issues of state law.”); see also

Overton v. Macauley, 822 F. App’x 341, 345 (6th Cir. 2020) (“Although procedural default often

appears as a preliminary question, we may decide the merits first.”); Hudson v. Jones, 351 F.3d

212, 215-16 (6th Cir. 2003) (citing Lambrix, 520 U.S. at 525; Nobles v. Johnson, 127 F.3d 409,

423-24 (5th Cir. 1997); 28 U.S.C. § 2254(b)(2)). Here, rather than conduct a lengthy inquiry into

procedural default, judicial economy favors proceeding directly to a discussion of the merits of

Petitioner’s claims.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1857 Filed 03/29/24 Page 4 of 35

BW’s brother in his custody dispute with his ex-wife. [Petitioner] denied the otheracts evidence involving WAB and denied ever harming any woman. The jury

convicted [Petitioner] as noted above.

People v. Caldwell, No. 334322, 2017 WL 5503781, at *1 (Mich. Ct. App. Nov. 16, 2017). “The

facts as recited by the Michigan Court of Appeals are presumed correct on habeas review pursuant

to 28 U.S.C. § 2254(e)(1).”Shimel v. Warren, 838 F.3d 685,688 (6th Cir. 2016) (footnote omitted).

Jury selection for Petitioner’s trial occurred on June 14, 2016. (Trial Tr. I, ECF No. 25-8.)

Over the course of three days, the jury heard testimony from numerous witnesses, including law

enforcement officers, BW, WAB, BW’s mother, a friend of Petitioner’s, Petitioner’s neighbor,

Petitioner’s fiancee, and Petitioner himself. (Trial Tr. I, II, & III, ECF Nos. 25-8, 25-9, 25-10.) On

June 16, 2016, after about two hours of deliberation, the jury reached a guilty verdict. (Trial Tr.

Ill, ECF No. 25-10, PageID.1101.) Petitioner appeared before the trial court for sentencing on

August 5, 2016. (ECF NdF25-l 1.)

Petitioner, with the assistance of counsel, appealed his convictions and sentences to the

Michigan Court of Appeals, asserting the following claims for relief: (1) his two convictions and

sentences for first-degree home invasion violated double jeopardy; (2) the prosecutor committed

error by arguing facts not in evidence; and (3) the trial court erred in scoring certain prior record

variables (PRVs) and offense variables (OVs). In a pro per supplemental brief, Petitioner raised

the following additional claims for relief: (1) the trial court erred by admitting evidence of WAB’s

assault; (2) the trial court erred by allowing the prosecution to impeach Petitioner with evidence

of his prior convictions; (3) the prosecutor made improper remarks during closing arguments; (4)

the prosecutor erred by allowing the jurors to view and read text messages that were not admitted

into evidence; (5) the prosecutor acted belligerently when questioning witnesses; (6) the prosecutor

was predisposed to find Petitioner guilty; and (7) Petitioner’s right of confrontation was violated.

See generally Caldwell, 2017 WL 5503781.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1858 Filed 03/29/24 Page 5 of 35

On appeal, the prosecution conceded error with respect to Petitioner’s double jeopardy

argument, and the court of appeals agreed. Id. at *1. The court of appeals remanded the matter for

the trial court to vacate one of Petitioner’s convictions and sentences for first-degree home

invasion and to modify the judgment to note that Petitioner’s remaining conviction and sentence

for first-degree home invasion “is for one count supported by two theories.” Id. The court of

appeals rejected all of Petitioner’s other grounds for relief. Id. at * 1. The Michigan Supreme Court

denied Petitioner’s application for leave to appeal on September 12, 2018. People v. Caldwell, 917

N.W.2d 63 (Mich. 2018).

On November 15, 2019, Petitioner filed a motion for relief from judgment pursuant to

Michigan Court Rule 6.500, asserting the ineffective assistance of appellate and trial counsel

claims that Petitioner now raises as habeas ground IV. (ECF No. 25-12.) On March 23, 2021, the

trial court denied Petitioner’s Rule 6.500 motion. (ECF No. 25-14.) Th^purt of appeals and the

supreme court denied Petitioner’s applications for leave to appeal on January 3, 2022, and June

28, 2022, respectively. (ECF Nos. 25-17, PageID.1416; ECF No. 25-19, PageID.1730.) This

§ 2254 petition followed.

II.

AEDPA Standard

The AEDPA “prevents] federal habeas ‘retrials’” and ensures that state court convictions

are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685,

693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated

pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on

the merits in state court unless the adjudication:

(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 upon an

unreasonable determination of the facts in light of the evidence presented in the

state court proceeding.

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28 U.S.C. § 2254(d). “Under these rules, [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.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (internal

quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). This standard

is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation

marks 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 toan 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 indistinguishable

facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “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).

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1860 Filed 03/29/24 Page 7 of 35

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

Stermer, 959 F.3d at 721. “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).

“[W]here 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

quotation marks omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160

F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is

presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)

(en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d

652, 656 (6th Cir, 2001). This presumption of correctness is accorded tq^gjifiings of state appellate

courts, as well as the trial court. See Sumner v. Mata, 449 U.S.1“539, 546-547 (1981); Smith v.

Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

Section 2254(d) limits the facts a court may consider on habeas review. The federal court

is not free to consider any possible factual source. 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 a review of the state court record shows that additional fact-finding

was required under clearly established federal law or that the state court’s factual determination

was unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the

underlying claim on its merits.” Stermer, 959 F.3d at 721 (citing, inter alia, Brumfieldv. Cain, 576

U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).

If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1861 Filed 03/29/24 Page 8 of 35

claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),”—for example,

if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer, 959 F.3d

at 721. Then, the petitioner’s claim is reviewed de novo. Id. (citing Maples v. Stegall, 340 F.3d

433, 436 (6th Cir. 2003)).

III..

Discussion

]

1 Ground I—Admission of 404(b) Evidence ~~)

Petitioner first asserts that the trial court abused its discretion by admitting “prior bad acts”

evidence, pursuant to Michigan Rule of Evidence 404(b), without “pretrial notice.” (Pet., ECF No.

1, PageID.5.) According to Petitioner, the trial court permitted the prosecution to present WAB’s

testimony even though Petitioner did not receive notice of such in advance of trial. (Id.

PagelD.27.) Petitioner faults the trial court for “using the reason of the ‘[r]es [gjestae’ witness list

exception,” suggesting th^t no such exception applies to Rule 404(b). (Id.)

Petitioner raised this ground for relief in his pro per supplemental brief filed in the

Michigan Court of Appeals. See Caldwell, 2017 WL 5503781, at *4. The court of appeals agreed

with Petitioner that the trial court failed to correctly apply Rule 404(b)(2) because the trial court

failed to consider whether the prosecutor’s failure to provide pretrial notice of WAB’s testimony

should be excused “on good cause shown.” Id. The court of appeals, however, determined that the

error was not outcome determinative, stating:

When a trial court commits a preserved, nonconstitutional error, the error is

presumed not to be a ground for reversal unless it affirmatively appears that the

error, more probably than not, was outcome determinative. People v. Douglas, 496

Mich. 557, 566; 852 N.W.2d 587 (2014). The trial court’s failure to apply MRE

404(b)(2) did not-result in outcome-determinative prejudice to [Petitioner]. See

People v. Jackson, 498 Mich. 246, 278-280; 869 N.W.2d 253 (2015). As will be

discussed, the other-acts evidence was substantively admissible under MRE 404(b).

Thus, the trial court’s failure to apply MRE 404(b)(2) did not result in the admission

of substantively improper other-acts evidence, and although [Petitioner] was denied

an opportunity before trial to marshal arguments against admission of the otheracts evidence, [Petitioner] has not shown that any successful arguments were

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1862 Filed 03/29/24 Page 9 of 35

available to him. Additionally, the prosecutor’s notice of intent to introduce otheracts evidence could not have been a complete surprise to [Petitioner]. The

. prosecutor had named WAB on his witness list, and [Petitioner], because he had

pleaded guilty to charges arising from the assault on WAB, would have generally

been aware of WAB’s version of the 2003 assault. Furthermore, [Petitioner] has

made no argument that he would have approached trial or presented his defense any

differently had he received pretrial notice of the other-acts evidence. [Petitioner]

has not claimed that pretrial notice would have caused him to alter or abandon his

defense of consent or would have led him to present any additional witnesses.

Under these circumstances, the trial court’s failure to apply MRE 404(b)(2) was not

outcome determinative. See Jackson, 498 Mich, at 278-280.

Caldwell, 2017 WL 5503781, at *4. The court of appeals went on to conclude that WAB’s

testimony was admissible under Rule 404(b) “to show [Petitioner’s] intent and common scheme

or plan.” Id. at *5. The court of appeals noted that “[Petitioner’s] assault of BW and his assault of

WAB contained common features beyond the mere commission of a sexual assault of a woman.”

Id. The court of appeals stated further that WAB’s testimony was “of significant probative value”

because it was “relevant to determine whether the charged acts occurred* as well as [Petitioner’s]

intent.” Id.

As noted above, Petitioner suggests that his trial was rendered unfair—and, therefore,

violative of his due process rights—because the trial court erred in its determination that WAB’s

testimony was admissible under Rule 404(b). However, the extraordinary remedy of habeas corpus

lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained

in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly admitted or

improperly excluded under state law “is no part of the federal court’s habeas review of a state

conviction [for] it is not the province of a federal habeas court to re-examine state-court

determinations on state-law questions.” Id. at 67-68. Rather, “[i]n conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States.” Id. at 68. Thus, to the extent that Petitioner asserts that the state courts erred

under Michigan law, he fails to state a claim upon which habeas relief may be granted. State courts

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1863 Filed 03/29/24 Page 10 of 35

are the final arbiters of state law, and the federal courts will not intervene in such matters. See

Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

It is not inconceivable that evidence properly admitted under state law might still have the

effect of rendering Petitioner’s trial unfair. However, “state-court evidentiary rulings cannot rise

to the level of due process violations unless they offendf] some principle ofjustice so rooted in the

traditions and conscience of our people as to be ranked as fundamental.” Seymour v. Walker, 224

F.3d 542, 552 (6th Cir. 2000) (internal quotation marks omitted); accord Coleman v. Mitchell, 268

F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach

accords the state courts wide latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552.

Further, under the AEDPA, this Court may not grant relief if it would have decided the

evidentiary question differently. This Court may only grant relief if Petitioner is able to show that

the state court’s evidentiary ruling was in Conflict with a decision reached by the Supreme Court

on a question of law or if the state court decided the evidentiary issue differently than the Supreme

Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860

(6th Cir. 2000); see also Stewart v. Winn, 967 F.3d 534, 538 (6th Cir. 2020) (stating that, to obtain

habeas relief based on an allegedly improper evidentiary ruling, a petitioner must identify “a

Supreme Court case establishing a due process right with regard to the specific kind of evidence

at issue”).

Here, Petitioner fails to identify any clearly established Supreme Court precedent that

would preclude admission of WAB’s testimony. Indeed, there is no clearly established Supreme

Court precedent that holds that a state court violates the Due Process Clause by permitting

propensity evidence in the form of “other bad acts” evidence. In Estelle, the Supreme Court

declined to hold that the admission of prior acts evidence violated due process. Estelle, 502 U.S.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1864 Filed 03/29/24 Page 11 of 35

at 75. The Court stated in a footnote that because it need not reach the issue, it expressed no opinion

as to whether a state law would violate due process if it permitted the use of prior crimes evidence

to show propensity to commit a charged crime. Id. at 75 n.5. While the Supreme Court has

addressed whether prior acts testimony is permissible under the Federal Rules of Evidence, see

OldChiefv. United States, 519 U.S. 172 (1997); Huddleston v. United Stales, 485 U.S. 681 (1988),

it has not explicitly addressed the issue in constitutional terms. The Sixth Circuit has found that

“[t]here is no clearly established Supreme Court precedent which holds that a state violates due

process by permitting propensity evidence in the form of other bad acts evidence.” Bugh, 329 F.3d

at 512. “Likewise, there is no clearly established Supreme Court precedent requiring a prosecutor

to provide notice of such evidence before presenting it at trial.” Hill v. Palmer, No. l:18-cv-216,

2018 WL 1406845, at *5 (W.D. Mich. Mar. 21, 2018).

Thus, because there is no clearly established federal law holding that admission of “prior

bad acts” or propensity evidence and that failure to provide notice of such evidence before

presenting it at trial violates due process, Petitioner cannot demonstrate that the court of appeals’

rejection of his claim concerning the admission of WAB’s testimony is contrary to, or an

unreasonable application of, clearly established federal law. Accordingly, Petitioner is not entitled

to relief with respect to habeas ground I.

Grounds II and III—Prosecutorial Misconduct

In habeas grounds II and III, Petitioner suggests that his due process rights were violated

when the prosecutor committed misconduct.

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. Wainwright,

477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “[T]he

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1865 Filed 03/29/24 Page 12 of 35

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 should consider the extent to which the claimed misconduct

tended to mislead the jury or prejudice the petitioner. See United States v. Young, 470 U.S. 1,1112 (1985). The Supreme Court has described the Darden standard as “a very general one, leaving

courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.”’ Parker v.

Matthews, 567 U.S. 37, 48 (2012). The Parker Court rejected an attempt to graft any additional

requirements on the “very general” Darden standard.

“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, 567 U.S. at 47 (internal quotation marks omitted).

Ground II—Arguing Facts Not in Evidence

As habeas ground II, Petitioner faults the prosecution for arguing facts that were not in

evidence on three separate occasions during closing arguments. (Pet., ECF No. 1, PageID.7.)

Specifically, Petitioner avers that the prosecutor argued facts not in evidence during closing

arguments when the prosecutor stated that Petitioner said, in a phone call made from jail, “I sure

hope they don’t fingerprint that door.” (Id., PageID.49, 50-53.)

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1866 Filed 03/29/24 Page 13 of 35

Petitioner raised this argument on direct appeal, and the court of appeals thoroughly

addressed it. First, the court of appeals noted that Petitioner’s argument that the prosecutor argued

facts not in evidence differed from the objection on the basis of “no evidence” regarding

Petitioner’s jail phone calls made at trial. See Caldwell, 2017 WL 5503781, at *2. Nevertheless,

the court of appeals reviewed Petitioner’s unpreserved claim for plain error. Id. The court of

appeals agreed that the prosecution committed error, but that such error did not affect the outcome

of Petitioner’s trial. Specifically, the court of appeals stated:

The test for prosecutorial error is whether the defendant was denied a fair and

impartial trial. People v. Mesik (On Reconsideration), 285 Mich. App. 535, 541;

775 N.W.2d 857 (2009). A prosecutor may argue reasonable inferences from the

evidence, but a prosecutor may not argue facts not in evidence or mischaracterize

the evidence presented. People v. Watson, 245 Mich. App. 572, 588; 629 N.W.2d

411 (2001).

As [the State] concedes, the prosecutor argued facts not in evidence when he

remarked that [Petitioner] said in a phone call from jail that he hoped the police did

not fingerprint the door. Although Deputy Ryan Shields testified that [Petitioner],

in his phone calls from jail, mentioned that his fingerprints should be on the door,

Deputy Shields did not testify, and neither did Deputy David Nevins or [Petitioner],

that [Petitioner] said that he hoped the police did not fingerprint the door. The

prosecutor committed error that was clear or obvious. People v. Cannes, 460 Mich.

750, 763; 597 N.W.2d 130 (1999).

However, the prosecutor’s error did not affect [Petitioner’s] substantial rights.

Cooper, 309 Mich. App. at 88. Immediately after the prosecutor remarked that

[Petitioner] said in the jail phone calls that he hoped the police did not fingerprint

the door, in response to [Petitioner’s] objection, the trial court instructed the jury

that they were “to rely on their memories about the facts.” Then, in final

instructions, the trial court instructed the jury that it could only consider the

evidence that was properly admitted, and that the lawyers’ statements and

arguments were not evidence. “Jurors are presumed to follow their instructions, and

instructions are presumed to cure most errors.” People v. Abraham, 256 Mich. App.

265, 279; 662 N.W.2d 836 (2003). Additionally, the evidence against [Petitioner]

was substantial. BW identified [Petitioner] as the partially undressed man who

tapped her on her shoulder in the middle of the night in her bedroom; BW’s mother

testified that she had never seen BW as afraid as BW was that night; Deputy Nevins

testified that BW, upon seeing [Petitioner] in his vehicle, wanted to get away from

him immediately; bottles of shampoo and soap from the bathroom in BW’s house

were found in [Petitioner’s] vehicle; [Petitioner] told Deputy Nevins that he had

not been at BW’s house, but then later claimed that he had been invited in by BW;

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and, in a similar case, [Petitioner] broke into WAB’s house and woke her in the

middle of the night, telling her that he was going to “stick [his] dick” in her. Based

on the trial court’s instructions and the strong evidence of [Petitioner’s] guilt, the

prosecutor’s error did not affect the outcome of the proceedings. Cannes, 460

Mich, at 763.

Caldwell, 2017 WL 5503781, at *2.

“[T]he government may not rely on prejudicial facts not in evidence when making its

closing arguments.” United States v. Roach, 502 F.3d 425, 434 (6th Cir. 2007). Here, although the

court of appeals concluded that the prosecutor’s comments were improper, Petitioner fails to show

that the comments “so infected the trial with unfairness as to make the resulting conviction a denial

of due process.” Darden, All U.S. at 181 (quoting Donnelly, 416 U.S. at 643). Under Michigan

harmless error jurisprudence, unpreserved nonstructural constitutional error is reviewed under a

plain error standard. People v. Cornell, 646 N.W.2d 127, 142—43 (Mich. 2002); People v. Cannes,

597 N.W.2d 130, 143 (Mich. 1999). To prevail, the defendant must show “a plain error that

affected substantial rights.” Cannes, 597 N.W.2d at 143. The Michigan Supreme Court assesses

whether the error affected the outcome of the proceeding to determine whether the defendant has

made the necessary showing. People v. Davis, 983 N.W.2d 325, 336-337 (Mich. 2022) (citing

United States v. Olano,501 U.S. 725, 734 (1993)). That is “the same kind of inquiry” the Michigan

courts use to determine whether error is harmless: was it “outcome-determinative.” Id. The

Michigan Supreme Court equates “outcome determination” to “prejudice” when separating plain

from harmless error, People v. Vaughn, 821 N.W.2d 288, 303 (Mich. 2012), and when evaluating

the Strickland standard for ineffective assistance of counsel, People v. Harris, 840 N.W.2d 307,

308 (Mich. 2013).

The impact of an error on the outcome of the proceedings is also the focus of federal

harmless error analysis. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (adopting as

the standard for determining whether habeas relief if appropriate “whether the . . . error ‘had

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substantial and injurious effect or influence in determining the jury’s verdict.’”); O’Neal v.

McAninch, 513 U.S. 432, 436 (1995) (posing the question as “Do 1, the judge, think that the error

substantially influenced the jury’s decision?”); Brown v. Davenport, 596 U.S. 118, 126 (2022)

(stating that “a state prisoner ... must show that the error had a ‘substantial and injurious effect or

influence’ on the outcome of his trial” (quoting Brecht, 507 U.S. at 637)). The appellate court’s

decision that the error was not outcome determinative is the equivalent of a determination that the

error was harmless under Brecht. Kyles v. Whitley, 514 U.S. 419, 435-36 (1995).

Brown states that “a state court’s harmless-error determination qualifies as an adjudication

on the merits under AEDPA.” 596 U.S. at 127. Accordingly, the Court must defer to that

adjudication under § 2254(d)(1) unless the “petitioner persuades [the Court] that no ‘fairminded

juris[t]’ could reach the state court’s conclusion under [the Supreme] Court’s precedents.” Id.

at 1525 (quoting Davis v. Ayala, 576 U.S. 257, 269 (2015)). This is a standard that is intentionally

difficult to meet. See Woods, 575 U.S. at 316.

In his petition, Petitioner asserts that the evidence against him was “not substantially

overwhelming” because the defense presented witnesses who testified that BW and Petitioner

knew each other, and that Petitioner had been to BW’s house before. (Pet., ECF No. 1, PageID.58.)

Petitioner argues that his defense was premised upon a theory of BW’s consent, and that any

fingerprints found on the door would have tied into that theory. (Id.) By convicting Petitioner.

however, the jury presumably rejected Petitioner’s theory of consent. Petitioner provides no

argument suggesting that no fairminded jurist could come to the conclusion reached by the court

of appeals under Supreme Court precedent. Petitioner simply fails to demonstrate that the

prosecutor’s error had a “substantial and injurious effect or influence in determining the jury’s

verdict,” Brecht, 507 U.S. at 637, particularly in light of evidence admitted at trial that BW had

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1869 Filed 03/29/24 Page 16 of 35

identified Petitioner as the partially undressed man in her bedroom, that bottles of shampoo and

soap from BW’s bathroom were found in Petitioner’s vehicle, that Petitioner told conflicting

stories about the night in question, and that Petitioner had previously assaulted WAB in a similar

manner.

Given Petitioner’s failure to persuade the Court that no fairminded jurist could reach the

conclusion arrived at by the court of appeals, the Court will defer to the court of appeals’

determination. The Court’s deference to the court of appeals’ determination that any error was not

outcome determinative necessarily leads to a conclusion that Petitioner has failed to demonstrate

that the court of appeals’ rejection of this claim of prosecutorial misconduct is contrary to, or an

unreasonable application of, clearly established federal law. Petitioner, therefore, is not entitled to

relief with respect to habeas ground II.

Ground III—Disparaging Remarks

As habeas ground III, Petitioner argues that the prosecutor used “blatant[] and egregious

remarks” during trial and closing arguments that “painted [Petitioner] in a horrible light[,] [a]long

with Alana Young, his girlfriend at the time.” (Pet., ECF No. 1, PageID.8.) Specifically, Petitioner

asserts that the prosecutor: (1) referred to Young as a “pimp”; (2) called out Petitioner for having

“crocodile tears”; and (3) improperly vouched for BW’s credibility during closing arguments. (Id.,

PageID.63.)

Referring to Young as a “Pimp”

Petitioner first faults the prosecutor for referring to Young as a “pimp” during closing

arguments. A review of the transcript indicates that the prosecutor referred to Young as a “pimp”

when discussing testimony that Young and Petitioner were trying to get BW involved in a

threesome. (Trial Tr. Ill, ECF No. 25-10, PageID.1028.)

Petitioner raised this claim on direct appeal, and the court of appeals rejected it, stating:

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In his Standard 4 brief, [Petitioner] also argues that the prosecutor made several

improper remarks during his closing argument. [Petitioner] fails to provide any

citations to the record to support his claim, meaning that his arguments need not be

considered. Petri, 279 Mich. App. at 413. Even if we overlooked this deficiency,

upon reviewing the prosecutor’s closing argument and closing rebuttal argument,

it is apparent that the prosecutor only made one of the alleged improper remarks,

which was calling [Petitioner’s] girlfriend, Alana Young, a “pimp.” Because

[Petitioner] did not object to the prosecutor’s characterization of Young, the claim

of prosecutorial error is unpreserved, Bennett, 290 Mich. App. at 475, and we

review it for plain error affecting [Petitioner’s] substantial rights, Cooper, 309

Mich. App. at 88. A prosecutor has wide latitude in arguing the facts and reasonable

inferences arising from the evidence, and need not confine argument to the blandest

terms possible. People v. Dobek, 274 Mich. App. 58, 66; 732 N.W.2d 546 (2007).

Evidence supported the prosecution’s characterization of Young as a pimp. BW

testified that Young asked her to have a threesome with Young and [Petitioner].

Similarly, Young testified that she tried to convince BW to have a threesome with

her and [Petitioner] and that there was talk of paying BW for sex. Accordingly, the

prosecutor did not engage in any error when he referred to Young as a pimp.

Cooper, 309 Mich. App. at 88.

Caldwell, 2017 WL 5503781, at *7.

Here, Petitioner merely reiterates the arguments he made on direct appeal and asserts that

the prosecution’s characterization of Young was egregious. He suggests that the characterization

of Young as a “pimp” was improper because “pimps are in the business of making [money], not

paying out $200 for a consensual engagement, by way of a threesome.” (Pet., ECF No. 1,

PageID.63.) However, “[a] prosecutor has ‘leeway to argue reasonable inferences from the

evidence’ during closing arguments.” United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir.

2011) (quoting Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000)). That is exactly what the

prosecutor in Petitioner’s case did. Petitioner offers nothing to indicate that the court of appeals

strayed from clearly established federal law in rejecting this claim. Under the circumstances,

Petitioner has not demonstrated that the prosecutor’s characterization of Young “so infected the

trial with unfairness” that he was denied due process. See Darden, All U.S. at 181 (quoting

Donnelly, 416 U.S. at 643). Petitioner, therefore, is not entitled to relief with respect to this

assertion of prosecutorial misconduct.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1871 Filed 03/29/24 Page 18 of 35

“Crocodile Tears”

Petitioner next faults the prosecutor for characterizing Petitioner as having “crocodile

tears” during his testimony. During closing arguments, the prosecutor suggested, on a few

occasions, that Petitioner had displayed “crocodile tears” or “alligator tears” to garner sympathy

with the jury. (See, e.g., Trial Tr. Ill, ECF No. 25-10, PageID.1027.)

Petitioner raised his claim regarding the prosecution’s use of the terms “crocodile tears”

and “alligator tears” in his pro per supplemental brief as part of his argument that the prosecutor

made improper remarks during closing arguments. (ECF No. 25-16, PagelD.1353.) Although the

court of appeals did not expressly address the prosecutor’s use of these terms, the court of appeals’

opinion regarding this claim, as set forth supra, suggests that the court of appeals did not find the

prosecutor’s use of these terms improper. See Caldwell, 2017 WL 5503781, at *7.

Nevertheless, upon consideration of the record, this Court concludes that the prosecutor

committed no error by referring to Petitioner as displaying “crocodile tears,” as that was a

reasonable inference for the prosecutor to make given the evidence presented against Petitioner.

See Crosgrove, 637 F.3d at 664 (quoting Byrd, 209 F.3d at 535); see also Simpson v. Bell, 557 F.

Supp. 3d 365, 380-81 (E.D.N.Y. 2021) (rejecting habeas petitioner’s claim of prosecutorial

misconduct that the prosecutor “denigrated him personally by describing his remorse as ‘crocodile

tears’”); Lewis v. Chappell, No. LA CV11-06395 JAK, 2014 WL 12853210, at *18 (C.D. Cal.

Aug. 27, 2014) (same). Under the circumstances, Petitioner has not demonstrated that the

prosecutor’s characterization that Petitioner had displayed “crocodile tears” during his testimony

“so infected the trial with unfairness” that he was denied due process. See Darden, All U.S. at 181

(quoting Donnelly, 416 U.S. at 643). Petitioner, therefore, is not entitled to relief with respect to

this assertion of prosecutorial misconduct.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1872 Filed 03/29/24 Page 19 of 35

Vouching for BW

Finally, Petitioner contends that the prosecutor improperly vouched for BW’s credibility

during closing arguments. (Pet., ECF No. 1, PageID.63.) Specifically, Petitioner takes issue with

the following statement made by the prosecutor: “Look at the believable evidence. Does it show

guilt beyond a reasonable doubt? Absolutely. The young lady was telling you the truth and you

believe her, submitted by the facts.” (Trial Tr. Ill, ECF No. 25-10, PageID.1068.)

The Sixth Circuit has identified two types of objectionable vouching. See United States v.

Acosta, 924 F.3d 288, 299 (6th Cir. 2019); Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008). But

see Wogenstahl v. Mitchell, 668 F.3d 307, 328-29 (6th Cir. 2012) (treating the two aspects of

vouching as part of a single standard). The first type impermissibly places the government’s

prestige behind the witness to enhance his or her credibility. See United States v. Francis, 170 F.3d

546, 550 (6th Cir. 2019); United States v. Carroll, 26 F.3d 1380, 1388-89 (6th Cir. 1994). The

second type, also known as bolstering, occurs when the prosecutor invites the jury to believe there

is other evidence, known to the prosecutor but not introduced into evidence, justifying the

prosecutor's belief in the defendant's guilt. See Francis, 170 F.3d at 551; United States v. Medlin,

353 F.2d 789, 796 (6th Cir. 1965).

Moreover, a prosecutor may not “offer [his or her] opinions as to credibility of a witness

or the guilt of a defendant.” Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008). As the Supreme

Court has noted:

The prosecutor’s vouching for the credibility of witnesses and expressing his

personal opinion concerning the guilt of the accused pose two dangers: such

comments can convey the impression that evidence not presented to the jury, but

known to the prosecutor, supports the charges against the defendant and can thus

jeopardize the defendant's right to be tried solely on the basis of the evidence

presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of

the Government and may induce the jury to trust the Government’s judgment rather

than its own view of the evidence.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1873 Filed 03/29/24 Page 20 of 35

United States v. Young, 470 U.S. 1, 18-19 (1985). However, not every reference to the credibility

of a witness is objectionable vouching. “[A] prosecutor may ask the jury to draw reasonable

inferences of credibility from the evidence presented.” Willoughby v. White, 786 F. App’x 506,

513 (6th Cir. 2019).

Again, the court of appeals did not explicitly discuss Petitioner’s vouching claim in its

opinion, even though Petitioner mentioned his assertion in his pro per supplemental brief. (ECF

No. 25-16, PageID.1356.) Presumably, by focusing solely on the prosecutor’s characterization of

Young as a “pimp,” the court of appeals was of the opinion that the prosecutor did not vouch for

BW’s credibility.

Upon review of the record, the Court concludes that where the prosecutor noted that BW

was telling the truth, the prosecutor tied that argument to the evidence offered at trial or reasonable

inferences from that evidence. Petitioner fails to point to any part of the prosecutor’s argument that

suggests that the prosecutor invited the jurors to believe that BW was credible simply because the

prosecutor believed that to be the case. Moreover, the prosecutor did not invite the jury to believe

there was other evidence, known to the prosecutor but not introduced at trial, justifying a

conclusion that BW was credible. Furthermore, at no time did the prosecutor place the prestige of

the government behind BW to bolster her credibility.

The Court also notes that the trial court instructed the jury to consider only the evidence

admitted at trial, and that counsel’s closing arguments did not constitute evidence. (Trial Tr. Ill,

ECF No. 25-10, PageID.1083.) A jury is presumed to follow its instructions. See Weeks v.

Angelone, 528 U.S. 225, 23^1 (2000). Petitioner has not demonstrated that the remarks made by the

prosecutor during closing arguments “so infected the trial with unfairness” that he was denied due

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1874 Filed 03/29/24 Page 21 of 35

process. See Darden, All U.S. at 181 (quoting Donnelly, 416 U.S. at 643). Petitioner, therefore, is

not entitled to relief with respect to this assertion of prosecutorial misconduct.

Summary

In sum, Petitioner has not shown that the prosecutor engaged in misconduct by referring to

Young as a “pimp,” by characterizing Petitioner as having “crocodile tears” during his testimony,

or by impermissibly vouching for BW’s credibility. Petitioner fails to demonstrate that the court

of appeals’ rejection of this claim of prosecutorial misconduct is contrary to, or an unreasonable

application of, clearly established federal law. Petitioner, therefore, is not entitled to relief with

respect to habeas ground III.

Ground IV—Ineffective Assistance of Trial and Appellate Counsel

As his fourth ground for relief, Petitioner contends that trial and appellate counsel rendered

ineffective assistance in various ways.

Standard of Review

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

two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a

claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s performance

fell below an objective standard of reasonableness; and (2) that counsel’s deficient performance

prejudiced the petitioner resulting in an unreliable or fundamentally unfair outcome. Id. at 687. A

court considering a claim of ineffective assistance must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.

The petitioner bears the burden of overcoming the presumption that the challenged action might

be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see

also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic

decisions were hard to attack). The court must determine whether, in light of the circumstances as

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1875 Filed 03/29/24 Page 22 of 35

they existed at the time of counsel’s actions; “the identified acts or omissions were outside the

wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court

determines that counsel’s performance was outside that range, the petitioner is not entitled to relief

if counsel’s error had no effect on the judgment. Id. at 691.

The Strickland standard that applies to trial counsel also applies to appellate counsel.

However, a criminal appellant has no constitutional right to have every non-ffivolous issue raised

on appeal. Rather, ‘“winnowing out weaker arguments on appeal and focusing on’ those more

likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate

advocacy.” Smith v. Murray,All U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745,

751-52 (1983)). To require appellate counsel to raise every possible colorable issue “would

interfere with the constitutionally protected independence of counsel and restrict the wide latitude

counsel must have in making tactical decisions.” Strickland, 466 U.S. at 688. As the Supreme

Court has observed, it is difficult to demonstrate that an appellate attorney has violated the

performance prong where the attorney presents one argument on appeal rather than another. Smith

v. Robbins, 528 U.S. 259, 289 (2000). In such cases, the petitioner must demonstrate that the issue

not presented “was clearly stronger than issues that counsel did present.” Id.

Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews

a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is

“doubly” deferential. Harrington, 562 U.S. at 105 (citing Knowles v. Mirzayance, 556 U.S. Ill,

123 (2009)); see also Burt v. Titlow, 571 U.S. 12, 15 (2013); Cullen, 563 U.S. at 190; Premo v.

Moore, 562 U.S. 115, 122 (2011). Scrutiny of counsel’s performance is “highly deferential”, per

Strickland, to avoid the temptation to second guess a strategy after-the-fact and to “eliminate the

distorting effects of hindsight.” Strickland, 466 U.S. at 689. And then scrutiny of the state court’s

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1876 Filed 03/29/24 Page 23 of 35

scrutiny of counsel’s performance must also be deferential, per 28 U.S.C. § 2254(d). In light of

that double deference, the question before the habeas court is “whether there is any reasonable

argument that counsel satisfied Strickland's deferential standard.” Id.; Jackson v. Houk, 687 F.3d

723, 740-41 (6th Cir. 2012) (stating that the “Supreme Court has recently again underlined the

difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .” (citing

Harrington, 562 U.S. at 102)).

Petitioner raised his claims of ineffective assistance in his Rule 6.500 motion, and the trial

court rejected them in a written opinion. In that opinion, the trial court recognized that Petitioner’s

ineffective assistance claims were governed by the standard set forth in Strickland. (ECF No. 2514, PageID.1188.) The state court’s application of the correct standard eliminates the possibility

that the resulting decision is “contrary to” clearly established federal law. As the Supreme Court

stated in Williams v. Taylor.

The word “contrary” is commonly understood to mean “diametrically different,”

“opposite in character or nature,” or “mutually opposed.” Webster’s Third New

International Dictionary 495 (1976). The text of § 2254(d)(1) therefore suggests

that the state court’s decision must be substantially different from the relevant

precedent of this Court. The Fourth Circuit’s interpretation of the “contrary to”

clause accurately reflects this textual meaning. A state-court decision will certainly

be contrary to our clearly established precedent if the state court applies a rule that

contradicts the governing law set forth in our cases.

Williams, 529 U.S. at 405. The Court went on to offer, as an example of something that is not

“contrary to” clearly established federal law, the following:

[A] run-of-the-mill state-court decision applying the correct legal rule from our

cases to the facts of a prisoner’s case would not fit comfortably within

§ 2254(d)(l)’s “contrary to” clause. Assume, for example, that a state-court

decision on a prisoner’s ineffective-assistance claim correctly identifies Strickland

[v. Washington, 466 U.S. 668 (1984),] as the controlling legal authority and,

applying that framework, rejects the prisoner’s claim. Quite clearly, the state-court

decision would be in accord with our decision in Strickland as to the legal

prerequisites for establishing an ineffective-assistance claim, even assuming the

federal court considering the prisoner’s habeas application might reach a different

result applying the Strickland framework itself. It is difficult, however, to describe

Case l:22-cv-00700-HYJ-PJG

ECF No. 32, PagelD.1877 Filed 03/29/24 Page 24 of 35

such a run-of-the-mill state-court decision as “diametrically different” from,

“opposite in character or nature” from, or “mutually opposed” to Strickland, our

clearly established precedent. Although the state-court decision may be contrary to

the federal court’s conception of how Strickland ought to be applied in that

particular case, the decision is not “mutually opposed” to Strickland itself.

Id. at 406. Therefore, Petitioner can only overcome the deference afforded state court decisions if

the state court’s determinations were based on an unreasonable application of Strickland or if the

state court’s resolutions were based on unreasonable determinations of the facts. 28 U.S.C.

2254(d).

Ineffective Assistance of Trial Counsel

Failing to Introduce Jail Calls

Petitioner first faults trial counsel for failing to introduce as evidence “phone recordings

from [the] county jail.” (Pet., ECF No. 1, PageID.10.) According to Petitioner, these recordings

would have been material to his defense and “would have changed the outcome of trial.” (Id.,

PageID.79.) Petitioner suggests that had counsel introduced the recordings as evidence, the jury

would have heard that Petitioner never stated “I broke into the house” or “I hope they don’t

fingerprint the door” in those recordings. (Id.)

Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it, noting:

[Petitioner] further claims trial counsel was ineffective for his failure to introduce

into evidence phone calls made by [Petitioner] from jail. [Petitioner] claims the

phone calls were exculpatory. Unfortunately, [Petitioner] fails to realize that

statements made by him from a jail phone recording that are exculpatory would

generally not be admissible into evidence at trial. They are clearly classic hearsay

and not admissible. MRE 802. Hearsay is a statement, other than one made by the

declarant while testifying at the trial to prove the truth of the matter asserted. MRE

801. [Petitioner] took the stand and testified on his own behalf. He denied breaking

into the victim’.s-home or sexually assaulting her. Any phone calls he would have

made to third parties that would be consistent with or bolster this defense/claim

would be inadmissible hearsay. Those phone calls would not fall into a category of

statements that are not classified as hearsay. MRE 801(d)(1) & (2). Nor would any

recorded statements by [Petitioner] himself fall within a recognized exception to

the hearsay rule. MRE 803. While those phone calls may have been admissible by

the prosecution at trial against [Petitioner] if he had made inconsistent statements

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1878 Filed 03/29/24 Page 25 of 35

while testifying, trying to bolster one’s own testimony by making calls to third

parties does not make them admissible at trial even if they are recorded by the jail.

Otherwise, defendants could make countless calls from jail professing their

innocence and then expect them to be admitted as substantive evidence of truth.

That is not the case under our system of jurisprudence. That is not to say that a

phone call from a defendant recorded from jail could not under appropriate facts

and circumstances fall within a recognized hearsay exception under MRE 803, or

not be considered hearsay at all if offered appropriately under MRE 801(d)(1)(B)

or (C), but that is not the case under the facts of this case. [Petitioner] goes on to

acknowledge in his own brief that two officers admitted while testifying, that in the

phone recordings from the jail [Petitioner] never stated or admitted that he broke

into the house. [Petitioner] got the evidence he wanted from the officers’ own

mouths while testifying at his trial, which bolstered his own trial testimony, and left

the jury free to give what weight they wanted to that evidence. Since the recordings

would not have been admissible at trial in the court’s opinion, it cannot be

ineffective assistance of trial counsel to have not tried to offer them into evidence.

[Petitioner’s] argument on this point is without merit.

(ECF No. 25-14, PageID.1186-1187.)

The trial court’s conclusion that the recordings of the jail calls would not have been

admissible forecloses Petitioner’s ineffective assistance claim. Even if counsel had moved to

introduce the recordings, the trial court would have excluded them as inadmissible hearsay. That

determination binds this Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Wainwright v.

Goode, 464 U.S. 78, 84 (1983). In that circumstance, Petitioner cannot show that counsel’s failure

to move for the introduction of the recordings prejudiced Petitioner in any way and, accordingly,

he has failed to demonstrate that the trial court’s rejection of this claim of ineffective assistance is

an unreasonable application of Strickland. Petitioner, therefore, is not entitled to habeas relief with

respect to this issue.

Incorrect Objection

Next, Petitioner faults trial counsel for objecting on the wrong grounds during the

prosecutor’s closing argument. Specifically, Petitioner asserts that counsel objected that there was

“no evidence” of the jail phone recordings and what Petitioner had allegedly said in them admitted

at trial, and that counsel should have actually objected that the prosecutor was arguing facts not in

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1879 Filed 03/29/24 Page 26 of 35

evidence in order to preserve the argument for appeal. (Pet., ECF No. 1, PageID.84-85.) Petitioner

also faults counsel for not “object[ing] to the latter two instances of improper comments by the

prosecutor,” as well as for not “requesting] a curative instruction to remedy the situation.” {Id.,

PageID.86.)

During rebuttal argument, the prosecutor mentioned that in a jail phone call, Petitioner said,

“I sure hope they don’t fingerprint that door.” (Trial Tr. Ill, ECF No. 25-10, PageID.1068.) Trial

counsel objected, stating, “They never—they never—there was no evidence admitted about

[Petitioner’s] conversations in the jail.” {Id., PageID.1069.) The prosecutor responded, “Yes—yes,

there was.” {Id.) The trial court overruled the objection, stating that it was “up to the jury to rely

on their memories about the facts.” {Id.)

As discussed supra, the prosecutor committed error during closing arguments when he

remarked that Petitioner said in a phone call from jail that he hoped the police did not fingerprint

the door. See Caldwell, 2017 WL 5503781, at *2. The court of appeals concluded that the

prosecutor’s error did not affect the outcome of the proceedings, id., and this Court has agreed

with that determination.

Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it in

conjunction with Petitioner’s claim of ineffective assistance of appellate counsel, stating:

[Petitioner] seeks relief from judgment, claiming ineffective assistance of

[a]ppellate [c]ounsel, premised on the fact appellate counsel set forth in argument

that the prosecution at trial had “argued facts not in evidence” in rebuttal closing,

when trial counsel had actually objected at trial on the grounds of “no evidence”

being admitted at trial.

The Court of Appeals addressed these differences and concluded that because trial

counsel had objected on no evidence grounds, that appellate counsel’s presented

issue of arguing facts not in evidence was different and therefore insufficient to

preserve an appellate attack. Based on People v. Stimage, 202 Mich. App. 28; 507

N.W.2d 778 (1993), the court reasoned that the issue of prosecutorial error was

unpreserved. The court did however proceed to review the issue for plain error

affecting [Petitioner’s] substantial rights under People v. Cooper, 309 Mich. App.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1880 Filed 03/29/24 Page 27 of 35

74; 867 N.W.2d 452 (2015), and concluded the trial court had, following the

objection, instructed the jury to, “rely on their memories about the facts” and in

final instructions had informed the jury to only consider evidence that was properly

admitted into evidence. Though acknowledging the prosecutor’s remark in rebuttal

closing was erroneous, the Court of Appeals relied on both the instructions given

by the trial court and the “strong evidence of [Petitioner’s] guilt” based on the

cumulative testimony of multiple witnesses, to conclude that any error did not affect

the outcome of the [Petitioner’s] substantial rights.

In the case at hand the Court of Appeals opined that the issue appellate counsel

argued was unpreserved. Under [Mich. Comp. Laws § 769.26] as well as case law,

even if this issue had been properly preserved, the error in this court’s opinion

would have had negligible effect on the jury’s verdict, if any. See People v. Mateo,

453 Mich. 203; 551 N.W.2d 891 (1996). More damning to [Petitioner’s] case was

the eyewitness testimony of the victim, the observations of the victim’s mother, the

items from the victim’s bathroom found in the [Petitioner’s] vehicle, and the

conflicting stories [Petitioner] told police from denial of being at the victim’s home

to claiming later he had been invited in by the victim. To believe as [Petitioner]

would have one believe, that somehow the comment in the prosecutor’s rebuttal

was paramount to the jury’s decision, would require the finder of fact to totally

discount the overwhelming weight of the other evidence that was introduced at trial

against [Petitioner] and find it was of inconsequential value, which this court cannot

do in good conscience.

In addition to alleging ineffective assistance of appellate counsel, [Petitioner] also

alleges ineffective assistance of trial counsel, based on, inter alia, the same “no

evidence,” “facts not in evidence” argument. As this issue was addressed by the

Court of Appeals in their affirmance and presumably reviewed by the Supreme

Court in denying [Petitioner’s] application for leave, based on the above, this court

also determines this issue insufficient to warrant relief from judgment.

(ECF No. 25-14, PageID.1186-1186.)

Petitioner has offered no evidence, much less clear and convincing evidence, to overcome

the presumption of correctness afforded to the trial court’s factual findings. Petitioner fails to

demonstrate that he was prejudiced in any way by counsel’s failure to specifically argue “facts not

in evidence” rather than objecting on the basis of “no evidence.” Although counsel objected only

to the first instance of error by the prosecution, Petitioner has not shown that any further objection

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1881 Filed 03/29/24 Page 28 of 35

by counsel would have resulted in a different outcome. Moreover, the trial court instructed the jury

that counsel’s closing arguments did not constitute evidence (Trial Tr. Ill, ECF No. 25-10,

PageID.1083), and the jury is presumed to have followed that instruction, see Weeks, 528 U.S. at

234. Given the overwhelming evidence against Petitioner, Petitioner simply fails to demonstrate

that a differently-worded objection by counsel would have led to an acquittal. Because Petitioner

has not demonstrated that the trial court’s rejection of this claim of ineffective assistance was

contrary to, or an unreasonable application of, Strickland, he is not entitled to habeas relief on this

basis.

Advising Petitioner to Lie Under Oath

Finally, Petitioner faults counsel for advising him to lie under oath “regarding past crimes.”

(Pet., ECF No. 1, PageID.10.) Petitioner states that before he took the stand at trial, his attorney

told him to answer “no” if the prosecutor asked Petitioner “about his criminal record or whether

he has ever hurt a woman.” {Id., PageID.88.) Petitioner faults counsel for telling him that the

prosecution could not ask about his prior criminal history. {Id.) According to Petitioner, “[ii]o

[defendant in their right mind, without their counsel’s advice[,] would lie about having a criminal

record under oath, in front of [the] prosecutor, when the courts could so easily access this for a

jury to review.” {Id., PageID.89.) Petitioner avers that “[o]nce the jury knew that [he] had plead[ed]

guilty to previous charges similar to the charges he was on trial for, along with having been

impeached, [his] whole defense was useless.” {Id.)

Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it, stating:

On Wednesday June 15, 2016, [Petitioner] took the witness stand at 3:45 p.m., and

after raising his right hand was administered the following oath. “Do you solemnly

swear or affirm that the testimony you are about to give in this matter will be the

truth, the whole truth, and nothing but the truth, so help you God?” (TT Vol. II, p.

183). [Petitioner’s] response: “I do.” Id. He now asks this court for a new trial

because he took the witness stand with the specific intent to lie to the court and

jury. How convenient. A defendant can now lie in open court and when caught

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1882 Filed 03/29/24 Page 29 of 35

blame it on counsel, get a new trial, and by extension under [Petitioner’s] claim,

repeat the cycle until such time as he may be fortunate enough to find the right lie

to convince a jury of his innocence to obtain an acquittal, at which point any retrial

would be barred by double jeopardy. Not in my court. When a defendant takes the

witness stand and swears to tell the truth in front of a judge, jury, and God, if he or

she thereafter chooses to intentionally lie, then any consequences are borne by the

defendant and are not grounds for a new trial. [Petitioner] had an absolute

constitutional right to remain silent and not have his silence used against him and

chose not to. U.S. Const, amend. V, Mich. Const. 1963 art. I, sec. 17. That right

however does not extend to not having one’s words or lies used against him/her if

they choose to take the stand and testify. To permit a defendant to have a new trial

for the reason he/she lied under oath, would make a mockery of our system of

justice.

(ECF No. 25-14, PageID.1187.)

A criminal defendant’s right to testify on his own behalf “is a fundamental right.” United

States v. Stover, 474 F.3d 904, 908 (6th Cir. 2007) (citing Rock v. Arkansas, 483 U.S. 44, 52-53

& n.10 (1987)). Counsel’s role is to advise the defendant about whether to take the stand, but the

final decision is left to the defendant. Rock, 483 U.S. at 551; see also Jones v. Barnes, 463 U.S.

745, 751 (1983); United States v. Teague, 953 F.2d 1525, 1533 (11th Cir. 1992) (noting that

“[d]efense counsel bears the primary responsibility for advising the defendant of his right to testify

or not to testify, the strategic implications of each choice, and that it is ultimately for the defendant

himself to decide”).

“[A] defendant’s right to testify[, however,] does not include a right to commit perjury.”

United States v. Dunnigan, 507 U.S. 87, 96 (1993). With respect to claims of ineffective assistance

of counsel, several courts have held that counsel’s failure to address the possibility of committing

perjury or the consequences that could stem from doing so does not rise to the level of ineffective

assistance. See, e.g., United States v. Evans, Nos. 0:13-CR-22-DLB-REW, 0:17-CV-127-DLBREW, 2018 WL 8334950, at *10 (E.D. Ky. June 1, 2018) (rejecting petitioner’s claim of

ineffective assistance for counsel’s failure to advise him about the consequences of committing

perjury because the petitioner swore to tell the truth before testifying), report and recommendation

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1883 Filed 03/29/24 Page 30 of 35

adopted, 2019 WL 1077371 (E.D. Ky. Mar. 7, 2019); United States v. Wilkes, Nos. 07cr330-LAB,

15cv2841-LAB, 2017 WL 6344799, at *11 n.8 (S.D. Cal. Dec. 12, 2017) (“Even assuming that

[counsel] failed to warn Wilkes not to lie under oath, this doesn’t amount to ineffective assistance

or anything like it. All witnesses in all cases—most of whom are not represented by counsel at

all—are on notice that they must tell the truth; the oath itself is sufficient to convey that.”); Stevens

v. United States, Nos. CV414-014, CR411-199,2014 WL 7405470, at *3 (S.D. Ga. Dec. 29, 2014)

(“Stevens blames his attorney for failing to advise him that it was a bad idea to lie under oath to a

court of law. That’sjust laughable.”); Montas v. United States, Nos. 8:1 l-cv-849-T-27TGW, 8:08cr-271-T-27TGW, 2012 WL 5193413, at *5 (M.D. Fla. Oct. 19, 2012) (“Petitioner took an oath

before testifying at the sentencing hearing averring that he would testify truthfully. Counsel’s

failure to mention the possibility of an obstruction enhancement under these circumstances does

not rise to the level of ineffective assistance.”); United States v. Kelly, Nos. 2:09-36-DCR, 2:127226-DCR, 2012 WL 4955193, at *10 n.6 (E.D. Ky. Oct. 17,2012) (“An attorney is not ineffective

for failing to advise a defendant not to lie under oath.”); Robertson v. United States, 144 F. Supp.

2d 58, 67-68 (D.R.I. 2001) (concluding that counsel was not ineffective for failing to advise the

defendant that, if his testimony was found to be false, his sentence could be enhanced for

obstruction of justice because the oath administered to the defendant informed him of his

obligation to testify truthfully).

Likewise, courts have rejected ineffective assistance of counsel claims premised upon the

petitioner’s assertion that counsel affirmatively told him or her to commit perjury. See, e.g., Harris

v. United States, No: 17-3781, 2018 WL 509717, at *1 (6th Cir. Jan. 4, 2018) (affirming the

rejection of petitioner’s claim that counsel told her to lie about her substance abuse issues when

she pleaded guilty to Hobbs Act robbery); Brewer v. Aiken, 935 F.2d 850, 859-60 (7th Cir. 1991)

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1884 Filed 03/29/24 Page 31 of 35

(“The purpose of the rule against presenting false evidence is to protect the integrity of the truth

finding function of courts rather than the rights of the defendant. The rule protects the public from

allowing defendants to subvert the criminal justice system through fabricating evidence. ... It

would be absurd to create a rule allowing a defendant to go free if perjured testimony succeeds

while at the same time providing for a new trial if the witness is a poor liar.”); Ingram v. United

States, Nos. 3:13-CR-45-TAV-DCP-9, 3:15-CV-334-TAV, 2018 WL 3717101, at *5 (E.D. Tenn.

Aug. 3, 2018) (rejecting petitioner’s claim that counsel suborned perjury by telling the petitioner

to lie in open court and plead guilty to possession of a firearm in furtherance of a drug trafficking

offense); Hallv. Rivard, No. 2:10-cv-l 1252, 2016 WL 1258990, at *9 (E.D. Mich. Mar. 31, 2016)

(rejecting petitioner’s claim that attorney advised him to take the stand and falsely testily that he

did not fire a gun on the night in question); Monegro v. Greiner, No. 03 Civ. 2735 (NRB), 2004

WL 187129, at *6 (S.D.N.Y. 2004) (“Even if petitioner did commit perjury on his counsel’s

advice, we would decline to create a rule that such misconduct amounts to a ground for reversing

a conviction, particularly as petitioner does not allege that counsel in any way coerced him.”).

Here, Petitioner relies only upon his self-serving statements to support his claim; he

provides no evidence to support his assertion that counsel advised Petitioner to commit perjury

and lie about his past criminal history. Moreover, Petitioner points to no clearly established federal

law—i.e., Supreme Court decisions—holding that counsel commits ineffective assistance by

advising a client to commit perjury. While the Court does not condone trial counsel advising clients

to lie on the stand, Petitioner has not demonstrated that the trial court’s rejection of this ground for

relief is contrary to, or an unreasonable application of, Strickland. The record reflects that before

Petitioner took the stand, counsel requested a brief recess so that he could discuss with Petitioner

whether Petitioner was willing to testify. (Trial Tr. II, ECF No. 25-9, PageID.932.) After that brief

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1885 Filed 03/29/24 Page 32 of 35

recess, Petitioner was administered the oath, and he swore to tell the truth pursuant to that oath.

(Id.)'On cross-examination, Petitioner maintained that he had never assaulted WAB and had never

hurt a woman. He suggested that when he had pleaded guilty to assaulting WAB, he had been

forced to lie to the court. (Id., PageID.974.)

Even if Petitioner testified falsely pursuant to counsel’s advice, he fails to demonstrate

prejudice from his decision to do so. Prior to Petitioner taking the stand, the jury had already heard

testimony from WAB concerning how she had previously been assaulted by Petitioner in a manner

similar to the assault committed against BW. Moreover, Petitioner was on notice, via the oath, that

he must tell the truth and yet, despite agreeing to do so, steadfastly maintained that he had never

hurt or assaulted a woman in his life. Petitioner himself is ultimately to blame for giving incorrect

testimony at trial. Furthermore, as already discussed, substantial evidence supported Petitioner’s

conviction for assaulting BW, and Petitioner has offered nothing to suggest that the outcome of

his trial would have differed had he testified truthfully. Because Petitioner has not demonstrated

that the trial court’s rejection of this claim of ineffective assistance was contrary to, or an

unreasonable application of, Strickland, he is not entitled to habeas relief on this basis.

Ineffective Assistance of Appellate Counsel

Finally, Petitioner faults appellate counsel for “arguing on [djirect [ajppeal the wrong

issue,” which caused Petitioner to “[w]aive[] this issue and hav[e] to file a 6.500 motion.” (Pet.,

ECF No. 1, PageID.10.) Petitioner also faults appellate counsel for not raising his ineffective

assistance of trial counsel claims. (Id.)

First, Petitioner-asserts that appellate counsel “argued on appeal the wrong issue that

defense counsel objected to at trial.” (Id., PageID.72.) Specifically, Petitioner refers to the fact that

appellate counsel raised the issue of the prosecution “arguing facts not in evidence.” (Id.) Petitioner

suggests that “[t]he objected to issue of‘no evidence’ being admitted at trial was waived because

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1886 Filed 03/29/24 Page 33 of 35

it wasn’t raised by appellate counsel properly.” (Id., PageID.73.) According to Petitioner, appellate

counsel “only identified one instance in which the prosecution made [a] false comment” and failed

to supply the three alleged instances where the prosecutor made the false comment during closing

arguments. (Id.)

Petitioner raised this argument in his Rule 6.500 motion, and the trial court rejected it, as

set forth supra in Part IV.C.2.b regarding Petitioner’s related claim of ineffective assistance of trial

counsel. Although appellate counsel raised a different argument on direct appeal than the argument

asserted by trial counsel, the record before this Court clearly shows that the court of appeals

addressed the argument Petitioner asserts appellate counsel should have raised. Here, Petitioner

simply reiterates the arguments he raised in his Rule 6.500 motion—arguments that have already

been rejected by the state courts. Moreover, as discussed supra, Petitioner’s underlying claim of

prosecutorial misconduct lacks merit, as Petitioner fails to demonstrate that the outcome of his trial

would have been different absent the prosecutor’s error. Petitioner provides no evidence, much

less clear and convincing evidence, to overcome of presumption of correctness afforded to the trial

court’s factual findings regarding appellate counsel’s performance. See 28 U.S.C. § 2254(e)(1);

Davis, 658 F.3d at 531. Petitioner, therefore, is not entitled to relief with respect to this assertion

of ineffective assistance of appellate counsel.

With respect to Petitioner’s contention that appellate counsel failed to raise his ineffective

assistance of trial counsel claims, the trial court summarily rejected Petitioner’s argument in its

opinion denying Petitioner’s Rule 6.500 motion, noting that appellate counsel was not ineffective

because trial counsel did not render ineffective assistance. (ECF No. 25-14, PageID.1186-1188.)

As thoroughly discussed supra, Petitioner’s claims of ineffective assistance of trial counsel lack

merit. Accordingly, appellate counsel’s failure to raise such claims “on direct appeal cannot be

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1887 Filed 03/29/24 Page 34 of 35

deemed constitutionally deficient performance.” Willis v. Smith, 351 F.3d 741,746 (6th Cir. 2003);

see also Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001) (“If trial counsel performed

adequately, our inquiry is at an end; by definition, appellate counsel cannot be ineffective for a

failure to raise an issue that lacks merit”). Petitioner has not demonstrated that the trial court’s

rejection of his ineffective assistance of appellate counsel claim is contrary to, or an unreasonable

application of, Strickland.

Summary

In sum, Petitioner has not demonstrated that the trial court’s rejection of his various

ineffective assistance claims is contrary to, or an unreasonable application of, Strickland.

Petitioner, therefore, is not entitled to relief with respect to habeas ground IV.

IV.

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 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) (per curiam).

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). Murphy, 263 F.3d at 467.

Consequently, this Court has examined each of Petitioner’s claims under the Slack standard. Under

Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[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 could conclude

the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Case l:22-cv-00700-HYJ-PJG ECF No. 32, PagelD.1888 Filed 03/29/24 Page 35 of 35

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

Petitioner’s claims. Id.

The Court finds that reasonable jurists could not conclude that this Court’s dismissal of

Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate

of appealability. Moreover, although Petitioner has failed to demonstrate that he is in custody in

violation of the Constitution and has failed to make a substantial showing of the denial of a

constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal

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

Conclusion

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

appealability.

Dated: March 29, 2024

Is/ Hala Y. Jarbou

HALA Y. JARBOU

CHIEF UNITED STATES DISTRICT JUDGE

v .

Appendix DMCLS g 769.13

This document is current through Act 122 of the 2024 Regular Legislative Session and E.R.O. 2024-1

Michigan Compiled Laws Service > Chapter 760-777 Code of Criminal Procedure (§§ 760.1 —

777.69) > Act 175 of 1927 (§§760.1 — 777.69) > Chapter IX Judgment And Sentence (§§ 769.1

— 769.36)

sentence)! filing by prosecuting

attorney; challenge to accuracy or constitutional validity; evidence of

existence of prior conviction; determination by court; burden of proof.

Sec. 13.

(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as

provided under section 10, 11, or 12 of this chapter, by filing a written notice of his or her intent to do so

within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if

arraignment is waived, within 21 days after the filing of the information charging the underlying offense.

(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall list the prior conviction

or convictions that will or may be relied upon for purposes of sentence enhancement. The notice shall be

filed with the court and served upon the defendant or his or her attorney within the time provided in

subsection (1). The notice may be personally served upon the defendant or his or her attorney at the

arraignment on the information charging the underlying offense, or may be served in the manner provided

by law or court rule for service of written pleadings. The prosecuting attorney shall file a written proof of

service with the clerk of the court.

(3) The prosecuting attorney may file notice of intent to seek an enhanced sentence after the defendant

has been convicted of the underlying offense or a lesser offense, upon his or her plea of guilty or nolo

contendere if the defendant pleads guilty or nolo contendere at the arraignment on the information charging

the underlying offense, or within the time allowed for filing of the notice under subsection (1).

(4) A defendant who has been given notice that the prosecuting a'torney will seek to enhance his or her

sentence as provided under section 10, 11, or 12 of this chapter, may challenge the accuracy or

constitutional validity of 1 or more of the prior convictions listed in the notice by filing a written motion with

the court and by serving a copy of the motion upon the prosecuting attorney in accordance with rules of the

supreme court.

(5) The existence of the defendant’s prior conviction or convictions shall be determined by the court,

without a jury, at sentencing, or at a separate hearing scheduled for that purpose before sentencing. The

existence of a prior conviction may be established by any evidence that is relevant for that purpose,

including, but not limited to, 1 or more of the following:

(a) A copy of a judgment of conviction.

(b) A transcript of a prior trial or a plea-taking or sentencing proceeding.

(d) Information contained in a presentence report.

(e) A statement of the defendant.

(6) The court shall resolve any challenges to the accuracy or constitutional validity of a prior conviction or

convictions that have been raised in a motion filed under subsection (4) at sentencing or at a separate

. Page 2 of 14MCLS§ 769.13

hearing scheduled for that purpose before sentencing. The defendant, or his or her attorney, shall be given

an opportunity to deny, explain, or refute any evidence or information pertaining to the defendant’s prior

conviction or convictions before sentence is imposed, and shall be permitted to present relevant evidence

for that purpose.^he^detendantlShalllbear ttieTSurderTof eitablishing a prima facie showing that~ah~l1leged!

|prior conviction is inaccdrate or cdhstitutlohaily invaiid^lf the defendant establishes a prima facie showing

that information or evidence concerning an alleged prior conviction is inaccurate, the prosecuting attorney

shall bear the burden of proving, ^/^preponderance of the evidence?that the information or evidence is

accurate. If the defendant establishes a prima facie showing that an alleged prior conviction is

constitutionally invalid, the prosecuting attorney shall bear the burden of proving, by a preponderance of the

evidence, that the prior conviction is constitutionally valid.

History

Pub Acts 1927, No. 175, Ch. IX, § 13, eff September 5, 1927; amended by Pub Acts 1941, No. 310, eff January 10,

1942; 1949, No. 56, eff September 23, 1949; 1978, No. 77, imd eff March 22, 1978; 1994, No. 110, imd eff April 29,

1994, by § 2 eff May 1, 1994; Pub Acts 2006. No. 655, imd eff January 9, 2007.

Annotations

Notes

Prior codification:

C.L.1929, § 17341.

Editor’s notes:

gu^^^ai^^^^^j|^9^,.bfdvide^

"Section 2. This amendatory act shall take effect May 1, 1994 and shall apply to prosecutions for criminal offenses

committed on oi after that date.”.

Amendment Notes

jfmil 994fambndment<r.ewrote this entire section~7

The 2006 amendment in subsection (3) inserted a comma following “lesser offense”; and in subsection (5) added

paragraph (c) and redesignated former paragraphs (c) and (d) as paragraphs (d) and (e).

NOTES TO DECISIONS

1.Validity.

2.Purpose.

3.Application.

4.Effect.

''t

Appendix E:

1994 ML HB 5306

(“Enacted, April'28, f994~^j

Reporter

1994 Mi. ALS 110; 1994 Mi. P.A. 110; 1994 Mi. HB 5306

MICHIGAN ADVANCE LEGISLATIVE SERVICE > MICHIGAN 87TH LEGISLATURE - 1994 REGULAR

SESSION > (Act 110, Public Acts of 1994) > HOUSE BILL 5306

Synopsis

AN ACT to amend section 13 of chapter IX of Act No. 175 of the Public Acts of 1927, entitled as amended "An act

to revise, consolidate, and codify the laws relating to criminal procedure and to define the jurisdiction, powers, and

duties of courts, judges, and other officers of the court under the provisions of this act; to provide laws relative to the

rights of persons accused of criminal offenses and ordinance violations; to provide for the arrest of persons charged

with or suspected of criminal offenses and ordinance violations; to provide for bail of persons arrested for or

accused of criminal offenses and ordinance violations; to provide for the examination of persons accused of criminal

offenses; to regulate the procedure relative to grand juries, indictments, informations, and proceedings before trial;

to provide for trials of persons complained of or indicted for criminal offenses and ordinance violations and to

provide for the procedure in those trials; to provide for judgements and sentences of persons convicted of criminal

offenses and ordinance violations; to provide for procedure relating to new trials and appeals in criminal and

ordinance violation cases; to provide a uniform system of probation throughout this state and the appointment of

probation officers; to prescribe the powers, duties, and compensation of probation officers; to provide penalties for

the violation of the duties of probation officers; to provide for procedure governing proceedings to prevent crime and

proceedings for the discovery of crime; to provide for fees of officers; witnesses, and others in criminal and

ordinance violation cases; to set forth miscellaneous provisions as to criminal procedure in certain cases; to provide

penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with or

contravening any of the provisions of this act," being section 769.13 of the Michigan Compiled Laws.

Text

The People of the State of Michigan enact:

Section 1. Section 13 of chapter IX of Act No. 175 of the^pUBlic Acts ofJ 927-, be\r\drsectioh"769.13 of the Michigan

x~G<^Bi1eci'lIaws\\s amended to read as follows:

CHAPTER IX

Sec. 13. (1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as

provided under section 10, 11, or of this chapter, by filing a written notice of his or her intent to do so within 21 days

after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived,

within 21 days after the filing of the information charging the underlying offense.

(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall list the prior conviction or

convictions that will or may be relied upon for purposes of sentence enhancement. The notice shall be filed with the

court and served upon the defendant or his or her attorney within the time provided in subsection (1). The notice

may be personally served upon the defendant or his or her attorney at the arraignment on the information charging

Page 2 of 3

✓

1994 Mi. HB 5306

the underlying offense, or may be served in the manner provided by law or court rule for service of written

pleadings. The prosecuting attorney shall file a written proof of service with the clerk of the court.

(3) The prosecuting attorney may file notice of intent to seek an enhanced sentence after the defendant has been

convicted of the underlying offense or a lesser offense upon his or her plea of guilty or nolo contendere if the

defendant pleads guilty or nolo contendere at the arraignment on the information charging the underlying offense,

or within the time allowed for filing of the notice under subsection (1).

(4) A defendant who has been given notice that the prosecuting attorney will seek to enhance his or her sentence

as provided under section 10, 11, or 12 of this chapter, may challenge the accuracy or constitutional validity of 1 or

more of the prior convictions listed in the notice by filing a written motion with the court and by serving a copy of the

motion upon the prosecuting attorney in accordance with rules of the supreme court.

^fSKThe existence of the defendant's prior conviction or convictions shall be determined by the court, without a jury,

afsentencing, or at a separate hearing scheduled for that purpose before sentencing. The existence of a prior

conviction may be established by any evidence that is relevant for that purpose, including, but not limited to, 1 or

more of the following:

(a) A copy of a judgment of conviction.

(b) A transcript of a prior trial or a plea-taking or sentencing proceeding.

(d) A statement of the defendant.

(6) The court shall resolve any challenges to the accuracy or constitutional validity of a prior conviction or

convictions that have been raised in a motion filed under subsection (4) at sentencing or at a separate hearing

scheduled for that purpose before sentencing. The defendant, or his or her attorney, shall be given an opportunity

to deny, explain, or refute any evidence or information pertaining to the defendant's prior conviction or convictions

before sentence is imposed, and shall be permitted to present relevant evidence for that purpose. The defendant

shall bear the burden of establishing a prima facie showing that an alleged prior conviction is inaccurate or

constitutionally invalid. If the defendant establishes a prima facie showing that information or evidence concerning

an alleged prior conviction is inaccurate, the prosecuting attorney shall bear the burden of proving, by a

preponderance of the evidence, that the information or evidence is accurate. If the defendant establishes a prima

facie showing that an alleged prior conviction is constitutionally invalid, the prosecuting attorney shall bear the

burden of proving, by ^‘preponderance of the evidence, that the prior conviction is constitutionally valid.

Section 2._Thisamendatory act shallHake effect May 11, 199^and ^haiTapply to prosecutions for criminal offense^

^committed on or after that date^

This act is ordered to take immediate effect.

History

Approved'by the Governor"on'April 28, 1994"^

Sponsor

Introduced by Reps. Mathieu and Nye

MICHIGAN ADVANCE LEGISLATIVE SERVICE

ENROLLED HOUSE BILL NO. 5306

Additional material

from this filing is

available in the

Clerk's Office.

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.