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Wallace v. Wolfenbarger

April 27, 2010

DEXTER WALLACE, PETITIONER,
v.
HUGH WOLFENBARGER, RESPONDENT.



The opinion of the court was delivered by: Robert H. Cleland United States District Judge

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Dexter Wallace ("Petitioner"), presently incarcerated at the Handlon Correctional Facility in Ionia, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction for second-degree criminal sexual conduct,*fn1 and being a second felony habitual offender.*fn2 For the reasons stated below, the petition for writ of habeas corpus will be denied.

I. BACKGROUND

Petitioner pleaded guilty but mentally ill to one count of second-degree criminal sexual conduct and being a second felony habitual offender in the Ingham County Circuit Court. Petitioner was advised that these charges carried a maximum penalty of twenty two and one half years in prison. (Plea Tr. 3-5.) Petitioner was informed of the rights that he would be relinquishing by pleading guilty. Petitioner further acknowledged that, by pleading guilty, he would be giving up any claim at a later date that the plea was the result of any promises or threats that Petitioner did not reveal to the court at the time of the plea. (Id. at 6-7.) In exchange for his plea, the prosecutor agreed to dismiss one count of first-degree criminal sexual conduct and further agreed not to charge Petitioner as a fourth felony habitual offender. The prosecutor further agreed to dismiss a separate case which charged Petitioner with bribery and witness intimidation. (Id. at 7-8.) Petitioner and his counsel both acknowledged that this was the full extent of the plea agreement. (Id. at 8.) Petitioner acknowledged that the trial court had not made any agreements regarding Petitioner's sentence. Petitioner indicated further that no one had promised him anything other than what was contained in the plea agreement. (Id. at 9.) Petitioner made out a factual basis for the plea. (Id. at 10-11.) Prior to accepting the plea, the prosecutor and defense counsel again indicated that they were unaware of any promises, threats, or inducements other than those that had been placed on the record. (Id. at 12.)

Petitioner's sentencing took place on March 20, 2006. Prior to sentencing, a hearing was conducted on the issue of whether Petitioner had sexually penetrated the victim, his daughter. Petitioner's daughter testified that there were several different incidents when she was touched inappropriately by Petitioner. The victim indicated that Petitioner touched her breast and her vagina. (Sent. Tr. 5.) Petitioner testified at the hearing and denied ever sexually penetrating the victim. (Id. at 15.) The prosecutor placed into evidence a Sexual Assault Nurse Examiner [SANE] report made by nurse Sharon Salisbury. (Id. at 3.) In the SANE report, the nurse indicated that there were tears in the victim's hymen. The nurse also indicated in the SANE report that the victim had informed her that Petitioner had placed his penis inside of her the night before the examination.

The trial judge ruled that she would use the victim's statement to the nurse that was contained in the SANE report concerning penetration as a basis to determine Petitioner's sentencing guidelines range under the Michigan Sentencing Guidelines, because it was corroborated by physical evidence and was consistent with the victim's testimony in court at the sentencing hearing. The judge ruled that the SANE nurse's report and the victim's testimony were sufficient under a preponderance of evidence standard to conclude that the victim had been sexually penetrated on one occasion to support a scoring of 25 points under Offense Variable (OV) 11. The court also determined that there was a series of sexual touchings of the victim on prior occasions, which supported the scoring of OV 13 at 25 points for the prior occurrences that were not scored under OV 11 that involved touching, not penetration, and which showed a pattern involving three or more crimes against a person. The trial court scored Petitioner's sentencing guidelines range at 58-142 months. (Id. at 24-26.)

The judge sentenced Petitioner to one hundred and thirty two to two hundred and seventy months in prison. Petitioner indicated that he wanted to withdraw his plea, alleging that the trial court judge had agreed to sentence him at the lower end of the sentencing guidelines if he pleaded guilty. The trial court did not rule on Petitioner's motion to withdraw his plea. (Id. at 34-36.)

Petitioner's conviction was affirmed on appeal. People v. Wallace, No. 276072 (Mich. Ct. App. March 16, 2007), leave to appeal denied at 735 N.W.2d 267 (Mich. 2007).

In his original habeas petition, Petitioner seeks a writ of habeas corpus on the following grounds:

I. Petitioner was entitled as a matter of due process to withdraw his plea when the judge breached the plea bargain and did not sentence him to the lower end to the guidelines.

II. Petitioner's plea was involuntary because it was induced by misrepresentation.

III. The court improperly relied on hearsay contained in a forensic report in determining that Petitioner had penetrated his daughter.

IV. The trial court erroneously scored points for Offense Variables 11 and 13 because the scoring of these variables on the basis of factual findings or conclusions that were not submitted and proven to a jury beyond a reasonable doubt nor admitted by Petitioner's plea violates Petitioner's Sixth Amendment rights under Blakely v ...


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