Mendoza v. Harry

Filing 12

OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FLORIBERTO MENDOZA,
Petitioner,

Case No. 2:17-cv-10011
Hon. Arthur J. Tarnow

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
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

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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 to resentencing to correct the error.
The Michigan Court of Appeals denied the application “for lack of merit in the
grounds presented.” People v. Mendoza, No. 331297 (Mich. Ct. App. March 11,
2016). Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court which raised the same claim as he raised in the Michigan

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Court of Appeals. The Michigan Supreme Court denied the application because it
was not persuaded that the questions presented should be reviewed. People v.
Mendoza, 883 N.W.2d 763 (Mich. 2016)(table).
II. Standard of Review
This habeas petition is reviewed under the standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,
110 Stat. 1214 (Apr. 24, 1996). Under AEDPA, a federal court cannot grant habeas
relief with respect to any claim adjudicated on the merits in a state-court proceeding
unless the state adjudication of the claim either:
(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 proceeding. 28 U.S.C. § 2254(d)(1), (2).
“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

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(2003) (quoting Williams, 529 U.S. at 413). “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. 86 (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 omitted).
To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).
III. Discussion
Petitioner claims that his due process rights were violated when the trial court
relied upon inaccurate information in scoring his sentencing guidelines. Respondent
contends that the claim does not present a cognizable question on federal habeas
review. Petitioner raised this claim on direct appeal in the state courts. The Michigan
Court of Appeals denied leave to appeal “for lack of merit in the grounds presented,”
and the Michigan Supreme Court denied leave to appeal in a standard order. The

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state court decisions are neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.
As a general matter, a sentence imposed within statutory limits is generally not
subject to federal habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948);
Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). Petitioner’s sentence
was within the statutory maximum. see Mich. Comp. Laws § 750.520d(2).
To the extent Petitioner is simply alleging that the trial court incorrectly scored
OV 10 because it misinterpreted the requirements of state law on how that
sentencing factor is to be scored, Respondent is correct that the argument does not
raise a cognizable question. The scoring of the offense variables under a given set
of facts is a matter of state law. See Howard v. White, 76 F. App’x 52, 53 (6th Cir.
2003) (“A state court’s alleged misinterpretation of state sentencing guidelines . . .
is a matter of state concern only.”); see also McPhail v. Renico, 412 F. Supp. 2d
647, 656 (E.D. Mich. 2006); Robinson v. Stegall, 157 F. Supp. 2d 802, 823 (E.D.
Mich. 2001). Any error in scoring the offense variables and determining the guideline
range does not merit federal habeas review because state courts are the final
arbiters of state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809
F.2d 326, 328 (6th Cir. 1987).
Petitioner also asserts, however, that his sentence violates federal due
process because the trial court relied upon inaccurate information in scoring the
guidelines. A sentence may violate due process if it is carelessly or deliberately
pronounced on an extensive and materially false foundation which the defendant

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had no opportunity to correct. Townsend, 334 U.S. at 741; see also United States
v. Tucker, 404 U.S. 443, 447 (1972); United States v. Sammons, 918 F.2d 592, 603
(6th Cir. 1990) (defendant must have a meaningful opportunity to rebut contested
sentencing information). To prevail on such a claim, a petitioner must show that the
court relied upon the allegedly false information. United States v. Polselli, 747 F.2d
356, 358 (6th Cir. 1984); Draughn v. Jabe, 803 F. Supp. 70, 81 (E.D. Mich. 1992).
Petitioner has made no such showing. The record reveals that prior to
sentencing Petitioner’s counsel filed a brief contesting that the information contained
in the presentencing information report justified scoring 15 points for OV 10. The
prosecutor filed a responsive brief, and the trial court entertained argument and
afforded an opportunity for Petitioner to contest the contents of the presentencing
information report at the sentencing hearing. Petitioner also presented his
sentencing issues to the state appellate courts and was denied relief. Petitioner
therefore fails to establish that the trial court relied upon materially false or
inaccurate information in imposing his sentences which he had no opportunity to
correct. No due process violation occurred, and Petitioner has failed to demonstrate
entitlement to habeas relief on his sole claim.
IV. Conclusion
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. ‘ 2253(c)(1)(A); Fed. R. App. P. 22(b). A
certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. ‘ 2253(c)(2). When a court

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rejects a habeas claim on the merits, the substantial showing threshold is met if
Petitioner demonstrates that reasonable jurists would find the district court’s
assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel,
529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating
that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
In applying that standard, a district court may not conduct a full merits review, but
must limit its examination to a threshold inquiry into the underlying merit of
Petitioner’s claims. Id. at 336-37. “The district court must issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.” Rules
Governing ‘ 2254 Cases, Rule 11(a), 28 U.S.C. foll.’ 2254.
Petitioner has not demonstrated a substantial showing of the denial of a
constitutional right with respect to his claim. A reasonable jurists would not debate
whether the Court correctly denied relief. Accordingly, a certificate of appealability
will be denied.
The Court will, however, grant Petitioner permission to proceed on appeal in
forma pauperis because an appeal could be taken in good faith. See Foster v.
Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002); 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a).
V. Order
Accordingly, it is ORDERED that the petition for writ of habeas corpus is
DENIED.

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It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that Petitioner may proceed in forma pauperis on
appeal.

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: June 29, 2017

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