United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
GERALD E. ROSEN, Chief District Judge.
Michigan state prisoner Daryl Zimmer has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, challenges his convictions for one count of first-degree criminal sexual conduct, one count of second-degree criminal sexual conduct, twelve counts of third-degree criminal sexual conduct, two counts of fourth-degree criminal sexual conduct, two counts of accosting a child for immoral purposes, one count of distributing obscene material to a minor, one count of child sexually abusive activity, and one count of distributing alcohol to a minor. For the reasons discussed, the Court denies the petition.
Zimmer's convictions arise from the sexual assault of several children over a fifteen-year period. He was charged in St. Clair County Circuit Court with three counts of first-degree criminal sexual conduct, one count of second-degree criminal sexual conduct, ten counts of third-degree criminal sexual conduct, two counts of fourth-degree criminal sexual conduct, two counts of accosting a minor for immoral purposes, distributing sexually explicit matter to minors, child sexually abusive activity, and furnishing alcohol to minors. On August 18, 2011, Zimmer pleaded guilty to all counts, except for the first two counts of first-degree criminal sexual conduct occurring in 2010-2011, and two additional counts of third-degree criminal sexual conduct. On September 19, 2011, Zimmer was sentenced to the following concurrent sentences: 25 to 75 years for the first-degree criminal sexual conduct conviction, 10 to 15 years for each of the second- and third-degree criminal sexual conduct convictions, 13 to 20 years for child sexually abusive activity conviction, 2 to 4 years for each of the accosting a child for immoral purposes convictions, 1 to 2 years for the fourth-degree criminal sexual conduct and distributing obscene materials convictions, and 90 days (with credit for time served) for the distributing alcohol to a minor conviction.
Zimmer filed a motion to withdraw his plea in the trial court, which the trial court denied. Zimmer then filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising these claims: (i) plea was coerced and involuntary; (ii) sentencing guidelines were mis-scored, based upon inaccurate information, and the court improperly exceeded the guidelines; and (iii) sentencing court lacked substantial and compelling reasons for exceeding the guidelines and the sentences are disproportionate. The Michigan Court of Appeals denied leave to appeal. People v. Zimmer, No. 309982 (Mich. Ct. App. Nov. 20, 2012). The Michigan Supreme Court denied Zimmer's application for leave to appeal. People v. Zimmer, 493 Mich. 895 (Mich. Nov. 20, 2012).
Zimmer then filed the pending habeas petition. He raises these claims:
I. Defendant is entitled to withdrawal of his plea as coerced and involuntary and in violation of his constitutional rights.
II. Mr. Zimmer is entitled to resentencing where the sentencing guidelines were mis-scored in violation of the state and federal due process right to sentencing based upon accurate information where the court improperly went above the guidelines.
III. Defendant's state and federal constitutional rights were violated where there were no substantial and compelling reasons to exceed the guidelines and the departure was disproportionate.
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...