United States District Court, E.D. Michigan, Southern Division
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
G. EDMUNDS UNITED STATES DISTRICT JUDGE.
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
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
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.
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.
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.)
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.)
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).
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.