factual predicate claim in Michigan

2026The defendant is prejudiced when there is “a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.” People v Uphaus, 278 Mich App 174, 185 ; 748 NW2d 899 (2008). “[D]efendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel . . . .” People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999).

2026The defendant is prejudiced when there is “a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.” People v Uphaus, 278 Mich App 174, 185 ; 748 NW2d 899 (2008). “[D]efendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel . . . .” People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999).

2026“Defendant also ‘bears the burden of establishing the factual predicate for his claim.’ ” People v Putman, 309 Mich App 240, 248 ; 870 NW2d 593 (2015), quoting People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001).

2026“Defendant also ‘bears the burden of establishing the factual predicate for his claim.’ ” People v Putman, 309 Mich App 240, 248 ; 870 NW2d 593 (2015), quoting People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001).

2025Defendant has therefore, once again, failed to establish the factual predicate of his claim.6 See id.

2025See also Douglas, 496 Mich at 592 (stating that the defendant must establish the factual predicate for his claim).

2026“Defendant also bears the burden of establishing the factual predicate for his claim.” People v Putman, 309 Mich App 240, 248 ; 870 NW2d 593 (2015) (quotation marks and citation omitted). “[A] defendant must overcome the strong presumption that counsel’s performance was born from a sound trial strategy.” Trakhtenberg, 493 Mich at 52 .

2026“Defendant also bears the burden of establishing the factual predicate for his claim.” People v Putman, 309 Mich App 240, 248 ; 870 NW2d 593 (2015) (quotation marks and citation omitted). “[A] defendant must overcome the strong presumption that counsel’s performance was born from a sound trial strategy.” Trakhtenberg, 493 Mich at 52 .

2025Here, defendant “offers no proof that an expert witness would have testified favorably if called” in his defense, so he “has not established the factual predicate for his claim.” Id.

2024“Accordingly, defendant has not established the factual predicate for his claim.” Id. -10- 6.

2026See People v Muhammad, 326 Mich App 40, 63 ; 931 NW2d 20 (2018) (stating because the “defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim”) (quotation marks and citation omitted).

2026See People v Muhammad, 326 Mich App 40, 63 ; 931 NW2d 20 (2018) (stating because the “defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim”) (quotation marks and citation omitted).

2024Further, “the defendant [also] necessarily bears the burden of establishing the factual predicate for his claim.” Cooper, 309 Mich App at 80 (quotation marks and citation omitted).

2024Defendant is not permitted to expand the record on appeal, Gingrich, 307 Mich App at 659 n 1, and yet is also responsible for establishing the factual predicate for his claim of ineffective assistance of counsel, Cooper, 309 Mich App at 80 .

2024A defendant bears the burden of “establishing the factual predicate for his claim of ineffective assistance of counsel.” Id. at 189 , quoting People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999).

2018When claiming ineffective assistance of counsel, it is the defendant’s burden to prove “(1) counsel’s performance was deficient, meaning that it fell below an objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable probability that the outcome of the defendant’s trial could have been different.” Solloway, 316 Mich App at 188 , citing People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001), in turn citing Strickland v Washington, 466 US 668, 687 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984). “[D]efendant has the burden of establishing the factual predicate for hi

2019“Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim.” People v Jackson (On Reconsideration), 313 Mich App 409, 432 ; 884 NW2d 297 (2015) (quotation marks and citation omitted).

2019“Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim.” People v Jackson (On Reconsideration), 313 Mich App 409, 432 ; 884 NW2d 297 (2015) (quotation marks and citation omitted).

2019“Furthermore, because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim,” id. (quotation marks, citation, and brackets omitted), and must “overcome the presumption that counsel employed effective trial strategy,” People v Payne, 285 Mich App 181, 190 ; 774 NW2d 714 (2009).

2019“Furthermore, because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim,” id. (quotation marks, citation, and brackets omitted), and must “overcome the presumption that counsel employed effective trial strategy,” People v Payne, 285 Mich App 181, 190 ; 774 NW2d 714 (2009).

2017Hence, he cannot overcome the strong presumption that his trial counsel performed effectively. “[C]ounsel cannot be faulted for failing to raise an objection or motion that would have been futile,” People v Fike, 228 Mich App 178, 182 ; 577 NW2d 903 (1998), and without a complete record of the totality of the circumstances surrounding Diaz-Gaskin’s custodial interrogation, it is impossible to gauge whether a motion to suppress his confession might have been successful, see Tierney, 266 Mich App at 707 (“Whether a defendant’s statement was knowing, intelligent, and voluntary is a question of la

2017Hence, he cannot overcome the strong presumption that his trial counsel performed effectively. “[C]ounsel cannot be faulted for failing to raise an objection or motion that would have been futile,” People v Fike, 228 Mich App 178, 182 ; 577 NW2d 903 (1998), and without a complete record of the totality of the circumstances surrounding Diaz-Gaskin’s custodial interrogation, it is impossible to gauge whether a motion to suppress his confession might have been successful, see Tierney, 266 Mich App at 707 (“Whether a defendant’s statement was knowing, intelligent, and voluntary is a question of la

2025See People v Elston, 462 Mich 751, 762 ; 614 NW2d 595 (2000).

2025See People v Elston, 462 Mich 751, 762 ; 614 NW2d 595 (2000).

2020Additionally, the defendant bears the burden to prove the factual predicate of his claim, People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999), and must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v Washington, 466 US 668, 689 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984).

2020Additionally, the defendant bears the burden to prove the factual predicate of his claim, People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999), and must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v Washington, 466 US 668, 689 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984).

2026“Defendant also bears the burden of establishing the factual predicate for his claim.” People v Putman, 309 Mich App 240, 248 ; 870 NW2d 593 (2015) (quotation marks and citation omitted). “[A] defendant must overcome the strong presumption that counsel’s performance was born from a sound trial strategy.” Trakhtenberg, 493 Mich at 52 .

2017This Court reviews a trial court’s decision regarding whether to hold an evidentiary hearing for an abuse of discretion, which occurs “when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.”4 A defendant seeking a new trial on the basis of ineffective assistance of counsel must demonstrate that “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.”5 Because it is incumbent upon the defendant to demo

2023Further, “[t]he defendant must [also] overcome a strong presumption that counsel’s performance constituted sound trial strategy.” People v Matuszak, 263 Mich App 42, 58 ; 687 NW2d 342 (2004). “[T]his Court neither substitutes its judgment for that of counsel regarding matters of trial strategy, nor makes an assessment of counsel’s competence with the benefit of hindsight.” Id.

2023Further, “[t]he defendant must [also] overcome a strong presumption that counsel’s performance constituted sound trial strategy.” People v Matuszak, 263 Mich App 42, 58 ; 687 NW2d 342 (2004). “[T]his Court neither substitutes its judgment for that of counsel regarding matters of trial strategy, nor makes an assessment of counsel’s competence with the benefit of hindsight.” Id.

2019We review de novo questions of constitutional law. [People v Armstrong, 490 Mich 281, 289 ; 806 NW2d 676 (2011) (footnotes omitted).] A defendant has the burden of establishing the factual predicate of his claim.

2019We review de novo questions of constitutional law. [People v Armstrong, 490 Mich 281, 289 ; 806 NW2d 676 (2011) (footnotes omitted).] A defendant has the burden of establishing the factual predicate of his claim.

2026But because defendant offers no evidence in support of his assertion that defense counsel failed to investigate, “he has not established the factual predicate for his claim.” Id.

2024The defendant also bears the burden of establishing the factual predicate for his claim. [People v Anderson, 322 Mich App 622, 628 ; 912 NW2d 607 (2018) (cleaned up).] “[C]ounsel is not ineffective for failing to raise meritless or futile objections.” People v Putman, 309 Mich App 240, 245 ; 870 NW2d 593 (2015).

2019See People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999) (noting that the “defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel”); People v Lockett, 295 Mich App 165, 187 ; 814 NW2d 295 (2012).

2018A defendant must also show that the result that did occur was fundamentally unfair or unreliable. [People v Lockett, 295 Mich App 165, 187 ; 814 NW2d 295 (2012).] “[T]he defendant necessarily bears the burden of establishing the factual predicate for his claim.” People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001).

2025In People v Serges, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 355554); slip op at 18-19, the defendant’s claim of ineffective assistance failed because he could not establish the factual predicate for his claim without relying on investigator notes and a death scene investigation report, both of which were not included in the lower court record. “[A] party may not expand the record on appeal, which consists of the original papers filed in that court or a certified copy, the transcript of any testimony or other proceedings in the case appealed, and the exhibits introduced.” Id. at

2017This Court reviews a trial court’s decision regarding whether to hold an evidentiary hearing for an abuse of discretion, which occurs “when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.”4 A defendant seeking a new trial on the basis of ineffective assistance of counsel must demonstrate that “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.”5 Because it is incumbent upon the defendant to demo

2021Defendant bears the burden of establishing the factual predicate for his claim that defense counsel’s performance fell below an objective standard of reasonableness and prejudiced his trial, see People v Odom, 327 Mich App 297 , 314; 933 NW2d 719 (2019), and in the absence of any support for the contention that these documents might have helped the defense, this Court cannot conclude that the failure to admit the documents prejudiced the defense, see People v Carll, 322 Mich App 690, 703 ; 915 NW2d 387 (2018).

2021Defendant bears the burden of establishing the factual predicate for his claim that defense counsel’s performance fell below an objective standard of reasonableness and prejudiced his trial, see People v Odom, 327 Mich App 297 , 314; 933 NW2d 719 (2019), and in the absence of any support for the contention that these documents might have helped the defense, this Court cannot conclude that the failure to admit the documents prejudiced the defense, see People v Carll, 322 Mich App 690, 703 ; 915 NW2d 387 (2018).