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Mendoza v. Harry

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

June 29, 2017

FLORIBERTO MENDOZA, Petitioner,
v.
SHIRLEE HARRY, Respondent.

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

          Arthur J. Tarnow Senior United States District Judge

         Petitioner Floriberto Mendoza filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pled guilty in the Tuscola County Circuit Court to one count of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d, and one count of fourth-degree criminal sexual conduct. Mich. Comp. Laws § 750.520e. These convictions resulted in a controlling sentence of 51 months to 15 years for the third-degree conviction, and a concurrent term of 322 days for the fourth-degree conviction.

         The petition raises one claim: Petitioner's sentencing guidelines were scored on the basis of inaccurate information and in violation of due process. The Court will deny the petition because the claim is without merit. The Court will also deny Petitioner a certificate of appealability, but it will grant him permission to proceed on appeal in forma pauperis.

         I. Background

         Petitioner was originally charged with over a dozen criminal counts stemming from acts of sexual misconduct he had with his nineteen-year-old niece. The victim came from Texas to stay with Petitioner's family and watch the children at Petitioner's house while the adults worked in the fields. According to the victim, Petitioner would return to the house during the workday and had unwanted sexual contact with her while she was alone in the house with the children.

         Petitioner pled guilty to one count of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct, and in exchange the prosecutor dismissed the other counts and agreed that Petitioner's minimum sentence would not exceed 57 months. Dkt. 10-2, at 15; Dkt. 10-4.

         Prior to sentencing, Petitioner's trial counsel filed a brief challenging some of the contents of the presentencing information report. Dkt. 10-5. In pertinent part, Petitioner asserts that the report erroneously scored 15 points for offense variable 10 (“OV 10”), which concerned predatory conduct. Id., at 3. The prosecutor filed a responsive brief asserting that the sentencing guidelines had been a negotiated part of the plea agreement. Dkt. 10-6, at 2. The prosecutor also argued that the 15 points were properly scored for OV 10:

[T]he victim was residing in a residence apart from other family members who remained in Texas. The victim was a primary caregiver to a number of minor children and frequently isolated from other adults. The defendant repeatedly returned home to the residence while other adults were absent and engaged in the acts that constituted the crimes alleged in this case. The victim had no readily available means to remove herself from the environment in which she was living. The defendant manipulated the dynamic of the living arrangements and exploited the victim for selfish and unethical purposes.

Id.

         At the sentencing hearing, defense counsel indicated that OV 10 should be scored zero points because the count of third-degree criminal sexual conduct that Petitioner plead guilty to involved a consensual encounter. Dkt. 10-7, at 6-7. The trial court rejected Petitioner's challenge:

So as to Offense Variable Number 10, the objection brought by the defendant to the scoring at 15 points, the Court finds that there is a preponderance of the evidence contained in the report which would justify the scoring of 15 points for predatory conduct which is delineated in the Agent's Description of the Offense including that the victim was the primary caregiver to the minor children in the home, was isolated from the other adults and was returned to the home by the defendant during these time periods when the conduct occurred. Those are more specifically set forth in the Agent's Description of the Offense, and the Court finds that there's a preponderance of the evidence to justify the scoring at 15 points.

Id., at 8.

         Following his conviction and sentence, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the following claim:

I. Defendant was sentenced on the basis of inaccurate information and in violation of due process where offense variable 10 was incorrectly scored and he is entitled ...

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