United States District Court, E.D. Michigan, Southern Division
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
Page Hood Chief Judge.
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.
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.
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).
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.,
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).
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.
Standard of Review
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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented