United States District Court, E.D. Michigan, Southern Division
Steven Whalen Magistrate Judge.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
J. MICHELSON, U.S. DISTRICT JUDGE.
Sanders was convicted of first-degree criminal sexual conduct
after he pled no contest to the charge. He was sentenced to
40 to 70 years. Pursuant to 28 U.S.C. § 2254, Sanders
now seeks a writ of habeas corpus from this Court. The
petition raises two claims: (1) ineffective assistance of
trial counsel based upon erroneous advice on the sentencing
guidelines and (2) an improper upward departure from the
sentencing guideline range. Neither claim warrants habeas
March 25, 2009, Sanders went into Jackson High School in
Jackson, Michigan. (R. 18-1, PID 426.) While there, a female
student left class to use the restroom. (Id.) As the
young woman left the bathroom stall, Sanders pushed her into
a stall and locked the door. (Id.) He threw her
against the wall, unbuttoned her pants, and digitally
penetrated her. (R. 18-1, PID 425-426.) The young woman
screamed and Sanders slapped her saying, “Bitch shut up
before I kill you. I have a gun in my pocket.” (R.
18-1, PID 428.) He pushed her to the floor, but the young
woman was able to slide into the adjacent stall and run back
to her classroom, screaming for help. (R. 18-1, PID 428-29.)
Her teacher chased Sanders out into the parking lot and
eventually wrestled him to the ground and returned him to the
school, where the young woman identified him as the
perpetrator. (R. 18-1, PID 419.)
written statement, Sanders admitted to digitally penetrating
the female student. (R. 18-1, PID 425.)
was charged with first-degree criminal sexual conduct, Mich.
Comp. Laws § 750.520b, and fourth-offense habitual
offender, Mich. Comp. Laws § 769.12. Sanders entered
into an agreement to plead “no contest” to one
count of first-degree criminal sexual conduct in exchange for
the prosecutor dropping the fourth-offense habitual offender
charge (R. 19-1).
November 25, 2009, the state trial court held a plea hearing.
(Id.) During the hearing, the judge asked whether
Sanders understood that the statutory maximum for
first-degree criminal sexual conduct was life in prison. (R.
19-1, PID 441.) Sanders responded that he understood.
(Id.) The judge then asked Sanders' counsel,
Wendell Jacobs, for Sanders' sentencing guideline range.
(R. 19-1, PID 442.) Jacobs responded that the guideline range
for his minimum sentence was 135 to 225 months (11.25 to
18.75 years). (Id.) Neither the judge nor the
prosecutor contested that range nor mentioned that it may
change. (Id.) Before asking for his plea, the judge
confirmed Sanders' understanding that “there's
been absolutely no agreement by the court, and in terms of
limiting its sentence that it could impose within the proper
limits of the law.” (R. 19-1, PID 444.) Sanders then
pled no contest. (R. 19-1, PID 445.)
was sentenced on January 7, 2010. (R. 14-3.) The presentence
report recommended a guideline range twice as high as the one
discussed at sentencing: 270 to 450 months (22.5 to 37.5
years) for a minimum sentence. Jacobs did not object to the
body of the presentence report, but did object to the scoring
of several of the offense variables. (R. 14-3, PID 116-23.)
The trial court overruled all of Jacobs' objections.
(Id.) During allocution, Sanders stated that he did
not rape the victim, and that a recently-obtained DNA test
failed to show the presence of any of his genetic material.
(R. 14-3, PID 126-29.) He stated that if he had known about
this evidence earlier, he would not have pled guilty. (R.
14-3, PID 126.)
court decided to exceed the top of the guideline range of
37.5 years for a minimum sentence and imposed a 40-year
minimum and 70-year maximum sentence. (R. 14-3, PID 145- 46.)
In discussing the basis for the upward departure, the court
recounted Sanders' long criminal history-five prior
felony convictions, 12 misdemeanor convictions,
“extensive assaultive criminal history, ” and a
“pattern of assaultive behavior, especially toward
women.” (R. 14-3, PID 141.) The court also recounted
the facts of the case, the psychological effects the attack
had on the victim, and Sanders' statement that he would
have killed the victim had he raped her. (R. 14-3, PID
141-44.) Judgment was entered on January 7, 2010. (R. 14-1,
later, Sanders sought and was granted appointment of
appellate counsel. (R. 14-1, PID 60.) His appellate counsel
filed a motion to withdraw Sanders' plea on the grounds
that his trial counsel (Jacobs) was ineffective for
misadvising him about the sentencing guidelines.
(See R. 14-4.) The trial court held an evidentiary
hearing on the claim. (R. 14-5.) At the hearing, Jacobs
testified that his calculations led to a guideline minimum
sentence between 135 and 225 months (11.25 to 18.75 years)
and that he did not believe the facts warranted the offense
variable scores that Sanders received. (R. 14-5, PID 164.) He
further stated that he never advised Sanders that a different
range might be calculated at the sentencing hearing. (R.
14-5, PID 170.)
confirmed Jacobs' account. He testified that Jacobs told
him that if he accepted his plea offer, his guideline range
would be anywhere from 135 to 225 months. (R. 14-5, PID 180.)
Sanders stated that Jacobs never said the guideline range
might be higher. (R. 14-5, PID 180-81.) Sanders testified
that had he known the guideline range would end up being so
high, he would not have pled and instead would have gone to
cross-examination, Sanders testified that he knew that a
trial court could exceed the sentencing guidelines. (R. 14-5,
PID 187.) Sanders further confirmed that he had sent several
letters during pretrial proceedings requesting a plea bargain
and in one of the letters, indicated that he did not wish to
put the young victim through a trial. (R. 14-5, PID 189-95.)
trial court denied Sanders' motion to withdraw his plea,
finding that Jacobs did not perform deficiently and, in any
event, that Sanders was not prejudiced by any deficient
performance. (R. 14-5, PID 232-34.)
filed an application for leave to appeal in the Michigan
Court of Appeals alleging ineffective assistance of counsel,
improper upward departure, and erroneous scoring of offense
variables. (R. 14-6.) The Michigan Court of Appeals denied