Smith v. Ludwick

Filing 158

OPINION and ORDER Denying 133 MOTION to grant writ of habeas corpus on the basis of newly discovered claims, Granting 141 Request, Denying 156 MOTION for Bond, Denying 157 Request, Granting 144 Request, Denying 153 MOTION, Denying 148 MOTION for Bond, Denying 155 MOTION, Granting 150 MOTION for Leave to File; and Granting a Certificate of Appealability and Leave to Appeal in forma pauperis. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DERRICK LEE SMITH,
Petitioner,
v.

CASE NO. 5:10-cv-11052
HONORABLE JOHN CORBETT O’MEARA

CATHERINE S. BAUMAN,
Respondent.
______________________________/
OPINION AND ORDER
GRANTING PETITIONER’S REQUEST AND MOTION FOR A DECISION
AND FOR COMPLIANCE WITH THE SIXTH CIRCUIT’S ORDER [141, 144],
GRANTING THE MOTION FOR PERMISSION TO FILE AN AFFIDAVIT [150],
DENYING PETITIONER’S MOTIONS FOR RELEASE ON BOND [148, 156],
DENYING PETITIONER’S MOTIONS FOR A WRIT OF HABEAS CORPUS [153, 155],
DENYING THE REQUEST FOR A REFERRAL TO THE MAGISTRATE JUDGE [157],
DENYING THE MOTION FOR A WRIT OF HABEAS
CORPUS BASED ON NEWLY DISCOVERED CLAIMS [133],
AND GRANTING A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
This habeas corpus case has come before the Court on remand from the United States
Court of Appeals for the Sixth Circuit. The Sixth Circuit has instructed the Court to treat one of
Petitioner’s post-judgment motions as a motion to amend. Also before the Court are the
following motions and requests filed by Petitioner: to make a decision on his motion regarding
newly discovered claims (ECF No. 141) and to comply with the Sixth Circuit’s remand order
(ECF No. 144); to release him on bond (ECF Nos. 148 and 156); to grant permission to file an

affidavit (ECF No. 150); to grant the writ of habeas corpus (ECF Nos. 153 and 155); and to order
the magistrate judge to prepare a report and recommendation (ECF No. 157). The Court grants
Petitioner’s motions and requests for permission to file an affidavit and to have the Court issue a
decision on his post-judgment motion about newly discovered claims. The Court declines to
grant release on bond, to issue the writ of habeas corpus, or to refer this matter to a magistrate
judge. Additionally, the Court denies Petitioner’s motion to grant habeas relief on the basis of
newly discovered claims.
I. Background
Petitioner was charged with kidnaping and sexually assaulting two adult sisters in Detroit
on January 13, 2008. On October 14, 2008, he pleaded no contest, as charged, to two counts of
kidnapping, Mich. Comp. Laws § 750.349, and six counts of criminal sexual conduct in the first
degree, Mich. Comp. Laws § 750.520b(1)(c) (sexual penetration during the commission of
another felony). There was no plea agreement between the parties, but the trial court agreed to
sentence Petitioner at the low end of the sentencing guidelines, which were scored at 270 to 450
months (twenty-two and a half to thirty-seven and a half years).1 On October 29, 2008, the trial

1

Pursuant to People v. Cobbs, 443 Mich. 276; 505 N.W.2d 208 (1993),
a judge may participate in sentence discussions. At the request of a party, and not
on the judge’s own initiative, a judge may state on the record the length of
sentence that, on the basis of the information then available to the judge, appears
to be appropriate for the charged offense.
....
The judge’s preliminary evaluation of the case does not bind the judge’s
sentencing discretion, since additional facts may emerge during later proceedings,
in the presentence report, through the allocution afforded to the prosecutor and the
victim, or from other sources. However, a defendant who pleads guilty or nolo
contendere in reliance upon a judge’s preliminary evaluation with regard to an
2

court sentenced Petitioner within the sentencing guidelines to eight concurrent terms of twentytwo and a half to seventy-five years in prison.2
Petitioner appealed his convictions and sentence, but the Michigan Court of Appeals
denied leave to appeal “for lack of merit in the grounds presented.” People v. Smith, No. 294843
(Mich. Ct. App. Jan. 4, 2010). On May 25, 2010, the Michigan Supreme Court denied leave to
appeal because it was not persuaded to review the issues. People v. Smith, 486 Mich. 929; 781
N.W.2d 818 (2010) (table). Petitioner pursued other post-conviction remedies in state court
without success.
On March 16, 2010, Petitioner filed his habeas corpus petition. (ECF No. 1). Three
months later, he requested a stay of the federal proceeding until his direct appeal concluded in
state court. (ECF No. 4). The Court granted Petitioner’s motion for a stay and closed this case
for administrative purposes. (ECF No. 7).
On April 30, 2012, Petitioner filed an amended petition (ECF No. 20), and on July 19,
2012, the Court re-opened this case (ECF No. 21). The case was stayed and re-opened one more
time, and on September 26, 2014, Petitioner filed a second amended petition. (ECF No. 66).
Ultimately, Respondent filed an answer to the petition (ECF No. 73), and on March 9, 2016, the
appropriate sentence has an absolute right to withdraw the plea if the judge later
determines that the sentence must exceed the preliminary evaluation.
Id., 443 Mich at 283; 505 N.W.2d at 212 (footnote and emphasis omitted).
2

The sentencing guidelines involve only the minimum sentence. As explained in People v.
Claypool, 470 Mich. 715; 684 N.W.2d 278 (2004), criminal defendants in Michigan are
given a sentence with a minimum and a maximum. The maximum is not
determined by the trial judge but is set by law. M.C.L. § 769.8. The minimum is
based on guidelines ranges . . . .
Id., 470 Mich. at 730 n.14; 684 N.W.2d at 286 n. 14.
3

Court denied the petition on the merits. (ECF No. 122). The Sixth Circuit Court of Appeals
denied Petitioner’s subsequent motion for a certificate of appealability. See Smith v. Bauman,
No. 16-1545 (6th Cir. Jan. 31, 2017) (ECF No. 138).
Meanwhile, Petitioner filed a successive motion for relief from judgment in the state trial
court. He challenged the scoring of his sentencing guidelines and also alleged that he recently
became aware that his sentence included a provision for lifetime electronic monitoring. The trial
court denied Petitioner’s motion on the basis that Petitioner had failed to allege either newly
discovered evidence or a retroactive change in the law. See People v. Smith, No. 08-8639-01-FC
(Wayne Cty. Cir. Ct. Aug. 8, 2016) (unpublished). The Michigan Court of Appeals denied leave
to appeal because Petitioner had failed to establish that the trial court erred in denying his postconviction motion. See People v. Smith, No. 335215 (Mich. Ct. App. Feb. 6, 2017). The
Michigan Supreme Court denied leave to appeal because Petitioner’s motion for relief from
judgment was barred by the Michigan court rule governing second or successive motions. See
People v. Smith, 501 Mich. 945; 904 N.W.2d 609 (2017).
Petitioner also filed several post-judgment motions in this Court, including one which he
titled “Motion for Leave to File Motion for Granting Writ of Habeas Corpus Based on New
Claims . . . Showing the Judgment of Sentence is Illegal . . . .” (ECF No. 133). The Court
transferred the motion to the Sixth Circuit Court of Appeals as a second or successive habeas
petition pursuant to In re Sims, 111 F.3d 45 (6th Cir. 1997, and Gonzalez v. Crosby, 545 U.S.
524 (2005). (ECF No. 137).
The Sixth Circuit ruled that the Court erred when it transferred Petitioner’s motion to the
Sixth Circuit as a second or successive petition. The Sixth Circuit stated that, because Petitioner

4

filed his motion before the time to appeal the denial of his habeas petition expired, the motion
was not a second or successive habeas petition. The Sixth Circuit stated that the Court should
have ruled on the merits of Petitioner’s motion as a motion to amend. Accordingly, the Sixth
Circuit vacated this Court’s order transferring Petitioner’s motion to the Sixth Circuit and
remanded the case to this Court for consideration of the motion on its merits. See In re Derrick
Lee Smith, No. 16-1616 (6th Cir. Apr. 10, 2017) (ECF No. 139).
On remand, this Court ordered Respondent to file a response to Petitioner’s motion to
amend. (ECF No. 145). Respondent filed a supplemental answer to the petition (ECF No. 146)
in which she argues that Petitioner’s claims are procedurally defaulted and barred by the oneyear statute of limitations. Petitioner filed a reply and the pending motions.
The Court now proceeds to address Petitioner’s new claims, as set forth in his motion to
grant the writ of habeas corpus on the basis of newly discovered claims. The Court has
determined that the claims do not warrant habeas relief. Accordingly, in the interest of
efficiency, the Court goes directly to the merits of Petitioner’s claims, rather than analyzing
whether the claims are procedurally defaulted or barred by the statute of limitations.3
II. Analysis
Petitioner seeks to have the Court consider two new claims. His first claim alleges that
his sentence is invalid and that he should be permitted to withdraw his plea because the trial
court failed to inform him that he would be sentenced to lifetime electronic monitoring if he
pleaded no contest. Petitioner’s second claim alleges that his sentence is illegal because the trial
court miscalculated the sentencing guidelines.
3

A procedural default is not a jurisdictional matter. Trest v. Cain, 522 U.S. 87, 89 (1997).
Likewise, the statute-of-limitations defense is not jurisdictional. Holland v. Florida, 560 U.S.
631, 645 (2010) (quoting Day v. McDonough, 547 U.S. 198, 205 (2006)).
5

As noted above, the Sixth Circuit has ordered the Court to treat Petitioner’s motion as a
motion to amend his habeas petition. Federal Rule of Civil Procedure 15 permits parties to file
amended and supplemental pleadings, but
“[w]hen a party seeks to amend a complaint after an adverse judgment, it . . . must
shoulder a heavier burden [than if the party sought to amend a complaint
beforehand]. Instead of meeting only the modest requirements of Rule 15, the
claimant must meet the requirements for reopening a case established by Rules 59
or 60.” Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 616 (6th
Cir. 2010) . . . .
Clark v. United States, 764 F.3d 653, 661 (6th Cir. 2014).
Federal Rule of Civil Procedure 59(e) permits a party to move to alter or amend a
judgment within twenty-eight days after entry of the judgment. The Court entered its opinion
and judgment denying Petitioner’s habeas petition on March 9, 2016, and on June 1, 2016,
Petitioner filed his motion regarding the new issues. Petitioner’s motion is untimely under Rule
59(e) because he filed it more than twenty-eight days after entry of the Court’s judgment on the
docket.
Under Federal Rule of Civil Procedure 60(b), a party may move for relief from a final
judgment for several specific reasons, including “newly discovered evidence,” and for “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(2) and (6). “A motion under Rule 60(b) must
be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year after the
entry of the judgment . . . .” Fed. R. Civ. P. 60(c)(1). Petitioner filed his motion within a
reasonable time and less than a year after this Court’s judgment. Thus, his Rule 60(b) motion is
timely.
Nevertheless, even assuming that Petitioner’s claims are newly discovered under Rule
60(b)(2), relief from judgment under Rule 60(b)(6) “is available only in ‘extraordinary

6

circumstances.’ ” Tharpe v. Sellers, 138 S. Ct. 545, 546 (2018) (quoting Gonzalez, 545 U.S. at
536. The Court concludes for the reasons given below that this is not an extraordinary case
requiring relief from judgment.
A. Lifetime Electronic Monitoring
Petitioner alleges that his no-contest plea was involuntary and unknowing because the
trial court failed to notify him that his sentence would include lifetime electronic monitoring.4
For the same reason, Petitioner argues that his sentence violates the Due Process Clause of the
Fourteenth Amendment and constitutes cruel and unusual punishment under the Eighth
Amendment.
1. Legal Framework
Petitioner has no absolute right to withdraw his no-contest plea. Shanks v. Wolfenbarger,
387 F. Supp.2d 740, 748 (E.D. Mich. 2005). But because a guilty or no-contest plea is a waiver
of constitutional rights, it must be a voluntary, knowing, and intelligent act, “done with sufficient
awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397
U.S. 742, 748 (1970). “The defendant need only be aware of the direct consequences of the plea,
however; the trial court is under no constitutional obligation to inform the defendant of all the
possible collateral consequences of the plea.” King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994)
(citing Brown v. Perini, 718 F.2d 784, 788–89 (6th Cir. 1983)).

4

Michigan’s statute on first-degree criminal sexual conduct provides that, “[i]n addition to any
other penalty imposed under subdivision (a) or (b) [of Mich. Comp. Laws § 750.520b(2)], the
court shall sentence the defendant to lifetime electronic monitoring under section 520n.” Mich.
Comp. Laws § 750.520b(2)(d). “Thus, the [Michigan] Legislature has mandated lifetime
electronic monitoring for all [first-degree criminal sexual conduct] sentences except when the
defendant is sentenced to life without the possibility of parole under § 520b(2)(c).” People v.
Comer, 500 Mich. 278, __; 901 N.W.2d 553, 559 (2017).
7

“There is some disagreement among the courts over how to distinguish between direct
and collateral consequences.” Padilla v. Kentucky, 559 U.S. 356, 364 n.8 (2010). The Michigan
Supreme Court, however, has held that “mandatory lifetime electronic monitoring is part of the
sentence itself” and, therefore, “it is a direct consequence of a guilty or no-contest plea to a
charge of [first-degree criminal sexual conduct] . . . when the defendant is sentenced to prison.”
People v. Cole, 491 Mich. 325, 327, 335; 817 N.W.2d 497, 498, 502 (2012). Thus, according to
the Michigan Supreme Court,
at the time a defendant enters a guilty or no-contest plea, the trial court must
inform the defendant if he or she will be subject to mandatory lifetime electronic
monitoring. In the absence of this information about a direct and automatic
consequence of a defendant’s decision to enter a plea and forgo his or her right to
a trial, no defendant could be said to have entered an understanding and voluntary
plea.
Id., 491 Mich. at 327-28; 817 N.W.2d at 498.
2. Application
Petitioner’s judgment of sentence clearly indicates that he was subject to lifetime
electronic monitoring, see ECF No. 25-8, Page ID 438, but Petitioner was not informed on the
record at either his plea proceeding or at his sentencing that he would be subject to lifetime
electronic monitoring. See 10/14/08 Plea Tr. (ECF No. 25-6); 10/29/08 Sentence Tr. (ECF No.
25-7). Nevertheless, the state trial court’s failure to comply with the procedural rule set forth in
Cole is not a basis for habeas relief. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990)(stating that
“federal habeas corpus relief does not lie for errors of state law;” see also Pulley v. Harris, 465
U.S. 37, 41 (1984) (explaining that “[a] federal court may not issue the writ on the basis of a
perceived error of state law”). Even if the violation of a state procedural rule were a basis for
habeas relief, Petitioner’s sentence was the result of a Cobbs plea, see 10/14/08 Plea Tr., at 6-7

8

(ECF No. 25–6, Page ID 401-02), and the Michigan Supreme Court declined to decide in Cole
“whether information about mandatory lifetime electronic monitoring must be included in the
terms of sentence evaluation under Cobbs.” Cole, 491 Mich. at 338 n.9; 817 N.W.2d at 504 n.
9.5
The United States Supreme Court, moreover, has never held that a plea is involuntary or
unknowing if the defendant was not informed that a consequence of his or her plea was lifetime
electronic monitoring. Cf. Padilla, 559 U.S. at 374 (holding that “counsel must inform the client
whether his plea carries a risk of deportation”). Thus, the state trial court’s failure to inform
Petitioner about mandatory lifetime electronic monitoring was neither contrary to, nor an
unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. §
2254(d), the standard of review for challenges to state-court convictions.
Further, the Sixth Circuit has said that matters which “are beyond the control or
responsibility of the [trial court] are collateral consequences of a conviction or plea.” United
States v. Cottle, 355 F. App’x 18, 20 (6th Cir. 2009). In Cottle, the Sixth Circuit concluded that
having to register as a sex offender was only a collateral consequence of a guilty plea. Id. at 2021.
Mandatory electronic monitoring will occur in Petitioner’s case if and when he is
released on parole. The monitoring will be beyond the control or responsibility of the trial court
and, therefore, it is a collateral consequence of Petitioner’s no-contest plea. The Court concludes
that Petitioner’s no-contest plea was not involuntary, unknowing, or a violation of due process as

5

The Michigan Supreme Court also gave no indication that its decision should be applied
retroactively on collateral review to defendants, like Petitioner, whose convictions became final
years earlier.
9

a result of the trial court’s failure to inform Petitioner on the record that he would be subject to
lifetime electronic monitoring if he pleaded guilty.
3. Cruel and Unusual Punishment
Petitioner maintains that the requirement of mandatory lifetime electronic monitoring
makes his sentence cruel and unusual punishment. The Eighth Amendment prohibits the
imposition of cruel and unusual punishments. However, while “[s]evere, mandatory penalties
may be cruel, . . . they are not unusual in the constitutional sense.” Harmelin v. Michigan, 501
U.S. 957, 994 (1991). In Harmelin, moreover, the Supreme Court upheld a sentence of life
imprisonment without the possibility of parole for possession of 672 grams of cocaine.
If life imprisonment without any possibility of parole for a non-violent offense is not
cruel and unusual punishment, lifetime electronic monitoring for the violent crime of criminal
sexual conduct is not cruel and unusual punishment. In fact, a few courts have held that
electronic monitoring does not amount to cruel and unusual punishment under the Eighth
Amendment. See Ferguson v. Dier-Zimmel, 809 F. Supp. 668, 669-70 (E.D. Wisc. 1992);
Noonan v. Hoofner, No. 1:14-cv-830, 2014 WL 5542745, at *6 (W.D. Mich. Oct. 31, 2014)
(unpublished); Lavandera-Hernandez v. Terrell, No. 1:12-cv-553, 2013 WL 1314721, at *7
(M.D. N.C. Mar. 28, 2013) (unpublished). The Court, therefore, declines to grant relief on
Petitioner’s Eighth Amendment claim.
C. The Scoring of the Sentencing Guidelines
Petitioner asserts that his sentence is unconstitutional because the sentencing guidelines
were improperly scored. A state court’s application and interpretation of state sentencing
guidelines is “a matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir.

10

2003), and “federal habeas corpus relief does not lie for errors of state law.” Jeffers, 497 U.S. at
780. Petitioner, nevertheless, also alleges that the trial court relied on inaccurate information in
violation of his constitutional right to due process.
The Supreme Court has stated that a sentence based on an extensively and materially
false foundation, which the defendant had no opportunity to correct through counsel, violates due
process. See Townsend v. Burke, 334 U.S. 736, 741 (1948); see also United States v. Tucker,
404 U.S. 443, 447 (1972) (affirming the federal appellate court’s remand of a case for resentencing where the sentence was “founded at least in part upon misinformation of
constitutional magnitude”). Accordingly, the Court will review Petitioner’s claims to determine
whether the trial court relied on extensively and materially false information when scoring
Petitioner’s sentencing guidelines. The state trial court determined on post-conviction review of
Petitioner’s sentencing claims that Petitioner waived any claim of a scoring error because he
entered into a sentence agreement and was sentenced consistent with that agreement.
1. Prior Record Variable Seven
Petitioner alleges that he received a score of twenty points for prior record variable seven,
which is “subsequent or concurrent felony convictions.” Mich. Comp. Laws § 777.57(1).
Twenty points is the correct score if “[t]he offender has 2 or more subsequent or concurrent
convictions.” Mich. Comp. Laws § 777.57(1)(a). Petitioner contends that his score of twenty
points was inaccurate because a concurrent felony conviction that will result in a consecutive
sentence under Mich. Comp. Laws § 333.7401(3) may not be counted under prior record variable
seven. Mich. Comp. Laws § 777.57(2)(c). Section 333.7401 deals with the “[m]anufacturing,

11

creating, delivering, or possessing with intent to manufacture, create, or deliver [a] controlled
substance, prescription form, or counterfeit prescription form.” Mich. Comp. Laws § 333.7401.
Petitioner had eight concurrent convictions (two counts of kidnaping and six counts of
criminal sexual conduct). His prior convictions consisted of two separate convictions for
criminal sexual conduct in the third degree in 1998, larceny by impersonation in 1992, and
larceny over a hundred dollars in 1993. 10/14/08 Plea Tr., p.14 (ECF No. 25-6, Page ID 409).
Because he had two or more concurrent convictions which did not result in a consecutive
sentence under § 333.7401, the trial court did not err in scoring twenty points for prior record
variable seven.
2. Offense Variables One and Two
Petitioner challenges the score for offense variable one, which “is aggravated use of a
weapon.” Mich. Comp. Laws § 777.31(1). Petitioner received a score of fifteen points, which
would be proper if “[a] firearm was pointed at or toward a victim or the victim had a reasonable
apprehension of an immediate battery when threatened with a knife or other cutting or stabbing
weapon.” Mich. Comp. Laws § 777.31(1)(c).
Petitioner also received five points for offense variable two on the basis that he
“possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon.” Mich.
Comp. Laws § 777.32(1)(d). Petitioner contends that he was never charged with possessing a
firearm or a knife and that no knife was used in the crime. Thus, according to him, he should not
have received fifteen points for offense variable one or five points for offense variable two.
One of the victims at the preliminary examination testified that Petitioner informed her
and her sister that he had a knife and could hurt them. For that reason, she and her sister listened

12

to Petitioner and did what he told them to do. 6/26/08 Prelim. Examination, p. 30 (ECF No. 255, Page ID 315). The other victim testified that Petitioner had said the victims were not going to
live and that their families would find them cut up in a garbage can in some unknown area in
Detroit. Id., p. 86, Page ID 371.
The victims’ testimony establishes that they were threatened and put in reasonable
apprehension of an immediate battery. The second victim, however, stated that she never saw a
knife and that no knife or other weapon was ever discovered. Id., p. 94, Page ID 379. Despite
this testimony, neither Petitioner, nor his attorney, challenged the scoring of offense variables
one and two at his plea when the trial court informed them of the guidelines or at Petitioner’s
sentencing when they had an opportunity to address the trial court. By failing to make a timely
objection to the scoring of the offense variables, Petitioner forfeited his claims. See People v.
Witherspoon, 257 Mich. App. 329, 333; 670 N.W.2d 434, 436 (2003) (stating that, generally, “an
appellant may not benefit from an alleged error that the appellant contributed to by plan or
negligence”).
Furthermore, Petitioner has not shown that his overall sentencing guidelines would have
changed if he had received fifteen fewer points for offense variable one and five fewer points for
offense variable two. Thus, the alleged errors apparently were harmless, as well as, forfeited.
3. Offense Variable Three
Offense variable three assesses points for any physical injury to a victim. Mich. Comp.
Laws § 777.33. Petitioner states that he received ten points for this offense variable on the basis
that “[b]odily injury requiring medical treatment occurred to a victim.” Mich. Comp. Laws §

13

777.33(1)(d). “As used in this section, ‘requiring medical treatment’ refers to the necessity for
treatment and not the victim’s success in obtaining treatment.” Mich. Comp. Laws § 777.33(3).
Petitioner contends that nothing in the record shows that anyone had to be seen by
medical personnel. One of the victims, however, testified at the preliminary examination that
Petitioner raped her and her sister, punched her, and hit her in the head. 6/26/08 Prelim.
Examination, pp. 20-21, 33-35, 37 (ECF No. 25-5, Page ID 305-06, 318-20, 322). Also, an
officer who responded to the crime scene testified that the victims appeared to need medical
attention. 6/25/08 Prelim. Examination, p.81 (ECF No. 25-4, Page ID 281). Given this
testimony about bodily injury and the need for medical attention, the trial court did not err in
scoring ten points for offense variable three.
4. Offense Variable Four
Offense variable four “is psychological injury to a victim.” Mich. Comp. Laws §
777.34(1). Petitioner alleges that he received ten points for this offense variable. Ten points is
appropriate if “[s]erious psychological injury requiring professional treatment occurred to a
victim.” Mich. Comp. Laws § 777.34(1)(a). When determining whether serious psychological
injury may require professional treatment, “the fact that treatment has not been sought is not
conclusive.” Mich. Comp. Laws § 777.34(2).
Petitioner maintains that there is nothing in the record to show that a victim needed
psychological treatment. One of the victims, however, testified at Petitioner’s sentencing that
she had nightmares after the crime. She also stated that her school scores suffered because she
could not stay composed and that she lost a job she was supposed to start on the day after the

14

crime. She said that the most difficult thing was the rift that the incident created between her and
her sister. 10/29/08 Sentence Tr., pp. 6-7 (ECF No. 25-7, Page ID 420-21).
The other victim’s statement was read into the record at the sentence hearing. She stated
that the incident continued to haunt her. She also said that she felt lost, scared, alone, stressed,
constantly anxious, angry, and ashamed. She said that she could not deal with life as she
formally did and that the incident had negatively affected her relationship with her sister. Id., p.
8 (ECF No. 25-7, Page ID 423).
The victims’ statements prove that psychological injury occurred as a result of the crimes,
and the fact that the victims may not have sought treatment is not conclusive on the issue. Mich.
Comp. Laws § 777.34(2). The trial court, therefore, did not err in scoring ten points for offense
variable four.
5. Offense Variable Eight
Offense variable eight “is victim asportation or captivity.” Mich. Comp. Laws §
777.38(1). Petitioner received fifteen points for asporting a victim “to another place of greater
danger or to a situation of greater danger.” Mich. Comp. Laws § 777.38(1)(a). According to
Petitioner, it was never established that he asported anyone or held anyone captive and,
therefore, fifteen points is inaccurate.
One victim, however, testified that, Petitioner entered her car uninvited and would not get
out of the car when she and her sister tried to take him where he wanted to go. Petitioner later
told her to park on a residential side street, and he would not let the women get out of the car.
He put his arm around her throat and then raped her. After she attempted to escape from the car
and flag down other cars, Petitioner pulled her back into the car and drove the women to another

15

residential location where he became more violent. She did not consent to going to those
locations with Petitioner. In fact, Petitioner bound the two women’s hands and feet with their
scarves and physically restrained them throughout the ordeal. 6/26/08 Prelim. Examination, pp.
25-37, 41-42 (ECF No. 25-5, Page ID 310-322, 326-27). The other victim provided similar
testimony and specifically testified that the car moved to two locations. See id., p. 86, Page ID
371.
The victims’ testimony established that Petitioner held them captive and moved them to a
location of greater danger when he drove them to a residential side street away from an area
where people had observed at least one victim in distress. The trial court did not err in scoring
fifteen points for offense variable eight.
6. Offense Variable Nine
Petitioner received ten points for offense variable nine (number of victims) on the basis
that “[t]here were 2 to 9 victims who were placed in danger of physical injury or death.” Mich.
Comp. Laws § 777.39(1)(c). There were two victims, and their testimony at the preliminary
examination established that they were placed in danger of physical injury when Petitioner
grabbed them around the neck, punched them, and raped them. The trial court did not err in
scoring ten points for offense variable nine.
7. Offense Variable Thirteen
This offense variable assesses whether there was a “continuing pattern of criminal
behavior.” Mich. Comp. Laws § 777.43(1). Petitioner alleges that he was improperly scored
fifty points for this offense variable because the victims were adults and because fifty points is
appropriate only if “[t]he offense was part of a pattern of felonious criminal activity involving 3

16

or more sexual penetrations against a person or persons less than 13 years of age.” Mich. Comp.
Laws § 777.43(1)(a).
While it is true that the victims were adults, another subsection of the statute, states that
twenty-five points may be scored for an offense that “was part of a pattern of felonious criminal
activity involving 3 or more crimes against a person.” Mich. Comp. Laws § 777.43(1)(c). In
addition, § 777.43(2)(d) instructs courts to “[s]core 50 points only if the sentencing offense is
first degree criminal sexual conduct.”
There were two victims in Petitioner’s case, and Petitioner committed three acts of firstdegree criminal sexual conduct against each victim. The trial court, therefore, did not err when it
scored offense variable thirteen at fifty points, twenty-five points for each victim.
The Court concludes that the trial court did not rely on extensively and materially false
information which Petitioner had no opportunity to correct through counsel. Therefore,
Petitioner’s challenge to the scoring of the sentencing guidelines lacks merit.
III. Conclusion and Order
Petitioner’s claims lack merit and do not justify relief from the Court’s judgment.
Accordingly, the Court denies Petitioner’s motion to grant the writ of habeas corpus on the basis
of newly discovered claims. (ECF No. 133). The Court further orders that:
• Petitioner’s request and motion for a decision and for compliance with the Sixth
Circuit’s order (ECF Nos. 141 and 144) are granted;
• Petitioner’s motion for permission to file an affidavit (ECF No. 150) is granted;
• Petitioner’s motions for release on bond pending a decision in this case (ECF Nos. 148,
and 156) are denied as moot;

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• Petitioner’s motions for a writ of habeas corpus (ECF Nos. 153 and 155) are denied for
the reasons given above; and
• Petitioner’s request for a referral of his claims to the magistrate judge (ECF No. 157) is
denied as moot.
A certificate of appealability is necessary before a prisoner may appeal the denial of a
Rule 60(b) motion, Johnson v. Bell, 605 F.3d 333, 336, 339 (6th Cir. 2010), and 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). An applicant must show that reasonable jurists
would debate whether the motion could have been resolved differently or that the claims raised
deserve further review. Johnson, 605 F.3d at 339 (citing Miller–El v. Cockrell, 537 U.S. 322,
336 (2003)).
Reasonable jurists could debate whether Petitioner’s arguments deserve further review.
The Court, therefore, grants a certificate of appealability and leave to appeal in forma pauperis.

Date: March 19, 2018

s/John Corbett O’Meara
United States District Judge

I hereby certify that on March 19, 2018, a copy of this opinion and order was served upon
counsel of record using the ECF system, and upon Petitioner using first-class U.S. mail.

s/William Barkholz
Case Manager

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