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Gibbons v. McCullick

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

April 28, 2017

LAWRENCE NORMAN GIBBONS, Petitioner,
v.
MARK McCULLICK, Respondent,

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

          Denise Page Hood Chief Judge.

         Lawrence Norman Gibbons, (“Petitioner”), confined at the St. Louis Correctional Facility in St. Louis, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence for first-degree criminal sexual conduct, M.C.L.A. 750.520b(1)(A). For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. Background

         Petitioner was originally charged with one count of first-degree criminal sexual conduct based on an allegation that he engaged in sexual penetration with a person under the age of thirteen years old. This charge carries a mandatory minimum twenty five year prison sentence. See M.C.L.A. 750.520b(2)(b). Petitioner was also charged with one count of second-degree criminal sexual conduct.

         On August 24, 2015, petitioner pleaded guilty to a first-degree criminal sexual conduct charge that was amended by the prosecutor to remove any allegation that the offense was perpetrated by an individual older than seventeen years old against a person younger than thirteen years old, so as to remove the mandatory minimum twenty five year sentence. The prosecutor agreed that petitioner's sentencing guidelines were between eighty one to one hundred and twenty months and that his maximum sentence would be fifteen years. (Tr. 8/24/15, p. 3). Petitioner pleaded guilty after being advised of the constitutional rights. (Id., pp. 4-7).

         Petitioner was sentenced on September 9, 2015. Prior to the sentence being imposed, defense counsel successfully objected to the scoring of points under Prior Record Variable (PRV) 6 and Offense Variables (OV) 3 and 8 of the Michigan Sentencing Guidelines. The judge, however, rejected counsel's objections to the scoring of OV 4 and OV 11 of the Michigan Sentencing Guidelines. The corrected sentencing guidelines range was reduced to fifty one to eighty five months. (Tr. 9/9/15, pp. 6-10). In imposing sentence, the judge noted that petitioner's counsel had managed to negotiate the removal of the mandatory minimum twenty five year prison sentence and had been able to cap petitioner's maximum sentence at fifteen years. After considering the Michigan Supreme Court case of People v. Lockridge, the plea agreement, and the seriousness of the offense, the judge sentenced petitioner to ten to fifteen years in prison. (Id., p. 12).

         Petitioner's conviction and sentence were affirmed on appeal. People v. Gibbons, No. 330909 (Mich.Ct.App. Feb. 18, 2016); lv. Den. 882 N.W.2d 147 (Mich. 2016).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. Trial court deprived Defendant of due process with sentencing, and counsel was ineffective.
II. Trial court violated constitutional law in sentencing, and ineffective assistance of counsel.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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 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 ...

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