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Lopez-Velasquez v. Palmer

United States District Court, E.D. Michigan, Southern Division

December 1, 2016

FELIPE LOPEZ-VELASQUEZ, Petitioner,
v.
CARMEN PALMER, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY, AND GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          MARK A. GOLDSMITH United States District Judge.

         Petitioner Felipe Lopez-Velasquez filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1), challenging the sentences imposed for his convictions for first-degree criminal sexual conduct and unarmed robbery on the grounds that offense guidelines 4 and 10 were improperly scored, the imposition of consecutive prison terms violated both the Michigan and United States Constitutions, and defense counsel was ineffective for failing to object to the scoring of offense variables and the imposition of consecutive sentences. Respondent argues that the sentencing claims are not cognizable and that all the claims are meritless. For the reasons explained below, the Court denies the petition, declines to issue a certificate of appealability, and grants Petitioner leave to proceed in forma pauperis on appeal.

         I. BACKGROUND

         Petitioner's convictions arise from the robbery and assault of Leslie Trentham in Grand Rapids on September 10, 2012. Petitioner was charged with three counts of first-degree criminal sexual conduct, and unarmed robbery. On July 1, 2013, Petitioner pleaded guilty one charge of first-degree criminal sexual conduct and unarmed robbery. See 7/1/2013 Plea Tr. (Dkt. 10-2). In exchange for the plea, the prosecutor dismissed the two remaining first-degree criminal sexual conduct charges and agreed to recommend sentencing within the 81 to 135 month guidelines range. Id. at 3. On August 29, 2013, the trial court sentenced Petitioner to six to fifteen years' imprisonment for the unarmed robbery conviction and eleven to forty-four years for the criminal sexual conduct conviction. See 8/29/2013 Sentencing Tr. at 9 (Dkt. 10-3).

         Petitioner then filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising these claims: (i) denied due process and equal protection when 10 points were scored on offense variables 4 and 14, and counsel was ineffective failing to object; and (ii) consecutive prison sentences violated the United States and Michigan Constitutions and counsel was ineffective in failing to object. The Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds presented.” People v. Lopez-Velasquez, No. 320562 (Mich. Ct. App. Apr. 25, 2014) (Dkt. 10-4). The Michigan Supreme Court also denied leave to appeal. People v. Lopez-Velasquez, 856 N.W.2d (Mich. 2014).

         Petitioner then filed this habeas corpus petition, raising the following claims:

i. “The trial court unlawfully deprived the Defendant of his due process, equal protection, and other protected rights under the United States and Michigan Constitutions when it scored 10 points on OV-4, and 10 points on OV-14; on plain error and/or ineffective assistance of counsel grounds this court should review the issue.”
ii. “The trial court unlawfully violated the United States and Michigan constitutions in sentencing the defendant to consecutive prison terms of 6-15 years on the unarmed robbery conviction and to 11-44 years on the CSC I conviction; on plain error and/or ineffective assistance of counsel grounds this court should review this issue.”

Pet. at 3 (cm/ecf page).

         Respondent has filed an answer to the petition (Dkt. 9), arguing that the sentencing claims are not cognizable, and that all of the claims are meritless.

         II. STANDARD OF REVIEW

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of review for habeas cases:

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 ...

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