Zimmer v. Rapelje
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Gerald E. Rosen. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 2:13-12560
HONORABLE GERALD E. ROSEN
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Michigan state prisoner Daryl Zimmer has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is currently
incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, challenges
his convictions for one count of first-degree criminal sexual conduct, one count of
second-degree criminal sexual conduct, twelve counts of third-degree criminal
sexual conduct, two counts of fourth-degree criminal sexual conduct, two counts of
accosting a child for immoral purposes, one count of distributing obscene material
to a minor, one count of child sexually abusive activity, and one count of
distributing alcohol to a minor. For the reasons discussed, the Court denies the
Zimmer’s convictions arise from the sexual assault of several children over a
fifteen-year period. He was charged in St. Clair County Circuit Court with three
counts of first-degree criminal sexual conduct, one count of second-degree
criminal sexual conduct, ten counts of third-degree criminal sexual conduct, two
counts of fourth-degree criminal sexual conduct, two counts of accosting a minor
for immoral purposes, distributing sexually explicit matter to minors, child
sexually abusive activity, and furnishing alcohol to minors. On August 18, 2011,
Zimmer pleaded guilty to all counts, except for the first two counts of first-degree
criminal sexual conduct occurring in 2010-2011, and two additional counts of
third-degree criminal sexual conduct. On September 19, 2011, Zimmer was
sentenced to the following concurrent sentences: 25 to 75 years for the first-degree
criminal sexual conduct conviction, 10 to 15 years for each of the second- and
third-degree criminal sexual conduct convictions, 13 to 20 years for child sexually
abusive activity conviction, 2 to 4 years for each of the accosting a child for
immoral purposes convictions, 1 to 2 years for the fourth-degree criminal sexual
conduct and distributing obscene materials convictions, and 90 days (with credit
for time served) for the distributing alcohol to a minor conviction.
Zimmer filed a motion to withdraw his plea in the trial court, which the trial
court denied. Zimmer then filed a delayed application for leave to appeal in the
Michigan Court of Appeals, raising these claims: (i) plea was coerced and
involuntary; (ii) sentencing guidelines were mis-scored, based upon inaccurate
information, and the court improperly exceeded the guidelines; and (iii) sentencing
court lacked substantial and compelling reasons for exceeding the guidelines and
the sentences are disproportionate. The Michigan Court of Appeals denied leave to
appeal. People v. Zimmer, No. 309982 (Mich. Ct. App. Nov. 20, 2012). The
Michigan Supreme Court denied Zimmer’s application for leave to appeal. People
v. Zimmer, 493 Mich. 895 (Mich. Nov. 20, 2012).
Zimmer then filed the pending habeas petition. He raises these claims:
Mr. Zimmer is entitled to resentencing where the sentencing
guidelines were mis-scored in violation of the state and federal due
process right to sentencing based upon accurate information where the
court improperly went above the guidelines.
Defendant is entitled to withdrawal of his plea as coerced and
involuntary and in violation of his constitutional rights.
Defendant’s state and federal constitutional rights were violated where
there were no substantial and compelling reasons to exceed the
guidelines and the departure was disproportionate.
28 U.S.C. § 2254(d) provides:
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; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)
(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable
application’ prong of the statute permits a federal habeas court to ‘grant the writ if
the state court identifies the correct governing legal principle from [the Supreme]
Court but unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413).
However, “[i]n order for a federal court find a state court’s application of [Supreme
Court] precedent ‘unreasonable,’ the state court’s decision must have been more
than incorrect or erroneous. The state court’s application must have been
‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see
also Williams, 529 U.S. at 409. “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
__, 131 S. Ct. 770, 789 (2011), (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004). “Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not a substitute
for ordinary error correction through appeal. . . . As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Id. at 786-87 (internal quotation
Section 2254(d)(1) limits a federal habeas court’s review to a determination
of whether the state court’s decision comports with clearly established federal law
as determined by the Supreme Court at the time the state court renders its decision.
See Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of
[Supreme Court] cases – indeed, it does not even require awareness of [Supreme
Court] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the
principles of “clearly established law” are to be determined solely by resort to
Supreme Court rulings, the decisions of lower federal courts may be instructive in
assessing the reasonableness of a state court’s resolution of an issue.” Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v. Bowersox, 340 F.3d
667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich.
Lastly, a federal habeas court must presume the correctness of state court
factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d
358, 360-61 (6th Cir. 1998). Discussion
Voluntariness of Plea
In his first habeas claim, Zimmer argues that his plea was involuntary
because it was based upon his attorney’s promise to him that the longest minimum
sentence he would receive was 11 years’ imprisonment. He was, instead,
sentenced to a minimum sentence of 25 years.
To be valid, a guilty plea must be voluntarily and intelligently made. Brady
v. U.S., 397 U.S. 742, 748-49 (1970). The plea must be made “with sufficient
awareness of the relevant circumstances and likely consequences.” Id. at 748. The
voluntariness of a plea “can be determined only by considering all of the relevant
circumstances surrounding it.” Id. at 749. A “plea of guilty entered by one fully
aware of the direct consequences” of the plea is voluntary in a constitutional sense,
and the mere fact that the defendant “did not correctly assess every relevant factor
entering into his decision” does not mean that the decision was not intelligent. Id.
at 755, 757. “[T]he decision whether or not to plead guilty ultimately rests with
the client.” Lyons v. Jackson, 299 F.3d 588, 598 (6th Cir. 2002).
The prosecutor in this case agreed to dismiss the first two first-degree
criminal sexual conduct charges in exchange for the guilty plea. The dismissed
first-degree criminal sexual conduct charges carried a mandatory minimum
sentence of 25 years. The third first-degree criminal sexual conduct conviction
carried no mandatory minimum sentence because the crime was committed before
the legislature amended Mich. Comp. Laws 750b(2)(b) to require a 25-year
mandatory minimum. Zimmer argues that his attorney advised him that the plea
agreement instead provided that he would receive a minimum sentence of 11 years.
The trial court, in denying Zimmer’s motion to withdraw his plea, held that
the plea was voluntarily, knowingly, and understandingly made. The trial court
noted that the record showed that Zimmer was fully aware of the consequences of
the guilty plea versus the potential consequences of proceeding to trial. The trial
court rejected Zimmer’s argument that his attorney incorrectly advised him that he
would receive a minimum sentence of 11 years.
The plea colloquy shows that Zimmer was informed of the maximum
possible sentence he faced and also that he was not promised a particular minimum
sentence. He was also informed of the rights he was waiving by pleading guilty,
such as the right to a trial by jury. Zimmer stated that no promises had been made
to him in exchange for his plea beyond those stated on the record. Zimmer’s
“[s]olemn declarations in open court” that his plea was freely, understandingly, and
voluntarily made, “carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 74 (1977).
Having reviewed the record, the Court is satisfied that Zimmer’s plea was
knowing, intelligent and voluntary and that the state court’s opinion finding the
same was not contrary to or an unreasonable application of Supreme Court
Zimmer’s second and third habeas claims challenge the fairness of the
sentences imposed. First, he argues that the trial court erred in scoring offense
variables 3, 8, 11, and 13, and that counsel was ineffective in failing to object to
the scoring. He also argues that the trial court failed to articulate substantial and
compelling reasons to exceed the sentencing guidelines and that his sentences are
Scoring of Offense Variables
It is well-established that “
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