United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
VICTORIA A. ROBERTS, District Judge.
Petitioner Donald Ladoucer, Jr., a prisoner in the custody of a the Michigan Department of Corrections, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his conviction for assault with intent to commit criminal sexual conduct with sexual penetration. Respondent argues that the petition should be denied because the claims are without merit and/or not cognizable.
The Court denies the petition.
Petitioner was charged in Bay County Circuit Court with assault with intent to commit sexual penetration, Mich. Comp. Laws § 750.520g; and two counts of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520(d). On June 3 2010, he pleaded guilty to one count of assault with intent to commit sexual penetration pursuant to a plea agreement providing for the dismissal of the remaining charges. On July 19, 2011, he was sentence to 36 to 120 months' imprisonment. On February 11, 2011, he filed a motion in the trial court to correct invalid sentence, hire an expert witness, and for a Ginther hearing. The trial court denied Petitioner's motion.
Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising these claims: (i) offense variable 11 improperly scored; (ii) trial court abused its discretion in denying Petitioner's request to withdraw his plea; (iii) trial court abused its discretion in denying request for a Ginther hearing; and (iv) matter should be remanded to a different court for resentencing. The Michigan Court of Appeals denied leave to appeal. People v. Ladouceur, No. 304946 (Mich. Ct. App. Sept. 20, 2011).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised on the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Ladouceur, 459 Mich. 967 (Mich. March 30, 1999).
Petitioner then filed the pending habeas petition. He raises this claim:
Was the Petitioner deprived of his Sixth Amendment and Fourteenth Amendment right to confrontation and due process of law where the evidence is legally insufficient to justify the guilt finding of assault with intent to commit CSC with penetration pursuant to Mich. Comp. Laws § 750.520(G)(1) requiring dismissal of the charges or reversal of the plea-based conviction.
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the AEDPA, a state prisoner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims -
(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 ...