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Barrera v. Nagy

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

May 23, 2019

JOHN JOSEPH BARRERA, Petitioner,
v.
NOAH NAGY, Warden, Respondent.

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

          NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Petitioner John Joseph Barrera, presently confined at the Lakeland Correctional Facility in Coldwater, Michigan, seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his sentence following his plea-based convictions of second- and third-degree criminal sexual conduct. Mich. Comp. Laws §§ 750.520c and 750.520d. For the reasons stated below, the application for writ of habeas corpus is summarily denied.

         I. BACKGROUND

         The Michigan Supreme Court reported the facts of Petitioner's conviction as follows:

Defendant was charged with two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, and two counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c, related to sexual assaults he perpetrated on his wife's granddaughter. Defendant entered into a plea deal under which he pleaded no contest as a fourth-offense habitual offender to the two CSC-II counts and to two added counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d.

People v. Barrera, 500 Mich. 14, 17 (2017). Following his plea conviction, Petitioner was sentenced to a prison term of 280 months to 600 months. (Pet. at 10, ECF No. 1.)

         Petitioner filed an application for leave to appeal to the Michigan Court of Appeals, which was denied. People v. Barrera, No. 324831 (Mich. Ct. App. Jan. 21, 2015). The Michigan Supreme Court rejected Petitioner's challenge to sentencing guidelines Offense Variable (OV) 8. Barrera, 500 Mich, at 22. However, the Court remanded Petitioner's case for resentencing, "because the parties have agreed there was an error in the scoring of OV11."Id. at17n.1.

         The sentencing guidelines range for the minimum term under Petitioner's original charges was 117 to 320 months. (Pet. at 10, ECF No. 1.) The plea agreement called for a minimum sentence between 84 and 280 months. (Id.)

         Correction of the scoring error reduced Petitioner's total offense variable score by 50 points. (Id.) With the reduction in the guidelines calculation, Petitioner's new sentencing range on remand was 99 to 320 months. (Id.) The trial court resentenced Petitioner to the same term, 280 months to 600 months, that he received before the appeal and remand. (Id. at 10, 11.)

         Petitioner appealed the new sentence. The Michigan Court of Appeals denied his delayed application for leave to appeal in a standard form order, "for lack of merit in the grounds presented." People v. Barrera, No. 342493 (Mich. Ct. App. April 5, 2018) (unpublished). On October 2, 2018, the Michigan Supreme Court denied his application for leave to appeal the lower court's decision. People v. Barrera, 503 Mich. 875 (2018) (Mem). The Court also denied Petitioner's motion for reconsideration. People v. Barrera, 503 Mich. 951 (2019) (Mem).

         In the habeas corpus petition before the Court, Petitioner challenges his sentence on a single ground:

PETITIONER IS ENTITLED TO BE RESENTENCED WHERE HIS SENTENCE IS BASED ON INACCURATE INFORMATION WHICH INCREASED HIS PUNISHMENT IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER U.S. SUPREME COURT'S RULING IN TOWNSEND V. BURKE; U.S. CONST. AMENDMENT XIV.

         II. DISCUSSION

         A. ...


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