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Marshall v. Winn

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

October 31, 2016

THOMAS WINN, Respondent,



         Calvin E. Marshall, (“Petitioner”), confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction and sentence for six counts of assault with intent to commit murder, M.C.L.A. 750.83. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. Background

         Petitioner was originally charged with six counts of assault with intent to commit murder, along with twelve other criminal charges arising from two other cases. Petitioner was also charged with being a fourth felony habitual offender.[1]

         On July 25, 2011, petitioner appeared in court for trial. The trial judge indicated that the prosecutor made a plea bargain offer to petitioner that would no longer require his testimony against his co-defendants, as an earlier proposed plea bargain had required. (Tr. 7/25/11, p. 4). The following exchange took place between the judge and petitioner:

THE COURT: Let me tell you this right now. How old are you?
THE COURT: What's 19 plus 62?
DEFENDANT MARSHALL: Seventy-nine, 72.
THE COURT: It's 81, okay? Do you want to be 81 years old when you're up for parole, all right, or would you prefer to be maybe 33? Eighty-one years or 33 years old?
DEFENDANT MARSHALL: I would rather be young.
THE COURT: All right. This is the deal. They're [the prosecutor] offering I think 14 years, right?
MR. EDWARDS: [the assistant prosecutor]: That's the bottom of the guidelines, yes, your Honor.
THE COURT: Okay. The top of your guidelines are 62-and-a-half years, so take 62-and-a-half, add your 19, you would be 81. If you take their 14 [years], you would be 33 and still a young man. Now your Habitual 4, so I'm supposed to be giving you life anyhow, all right, which means that you spend the rest of your time in prison for the rest----it's parolable life but you're supposed to be getting life. Your guidelines are 750 months, all right? So you would be 81 years old by the time you were eligible to be released, and that's just guidelines. Do you understand that?
THE COURT: Because of civil liability and all this other stuff, they may be willing to take a no contest plea where they----we would read into the record, you know, what the basis of this is, all right, but I don't want to have you----I've got three cases. See the prosecutor behind you? She's got----she's got the other two, okay, that come right after these, and these are Habitual 4's to begin with. Your guidelines in those are 25 years on just the car cases. The AWIM [assault with intent to murder] case they're at 81----62-and-a half years, 750 months, all right. So the----I don't----I mean it's bad to make a bad decision, but it's really bad to compound that mistake, go to jury trial, get convicted and then get a----basically, you know, a sentence, you know, for the rest of your life in prison. All right. So I would----I mean obviously you can go and, you know, go to jury trial in any one of these three cases here, all right? But they have three shots at you at sending you to jail for the rest of your life, all right? Twenty-five years, 25 years----I mean 14 years is obviously a lot less than 25, even on the car cases, all right let alone the one case, Assault With Intent to Murder.
(Id., pp. 5-7).

         The judge further explained to petitioner that the courtroom deputy was getting the jury ready, but that petitioner's attorney, Ms. Braxton, had wanted the judge to make a record “because she doesn't want you to go to jury trial, get convicted and then have you say, ‘ Well, gee, you should have given me a plea offer, ' all right? Because if you get 62-and-a-half years on this case today that's up for trial and you're offered 14 years, you know, that's roughly, you know a difference of about 48 years. So----and that's a big difference, and that's some people's whole lifetime is the difference she's [defense counsel] gotten you.” (Id., p. 7). The judge further explained to petitioner that defense counsel had managed to obtain this plea bargain without petitioner being required to testify. The judge again informed petitioner that he could plead and get 14 years, “and you wipe out all three cases” as well as two probation violations or he could go to trial but if convicted could receive 25 years on each of the car cases and 62-and-a-half years on the assault with intent to murder charges. (Id., pp. 7-8).

         Petitioner's trial counsel at this point put on the record that she was ready to go to trial and did not want petitioner to believe that she was forcing him to do anything. Counsel, however, wanted petitioner to understand the difference between the number of years in prison that he would receive by pleading versus the number of years that he could receive by going to trial. (Id., pp. 8-9).

The judge again explained the situation to petitioner.
THE COURT: Mr. Marshall, Ms. Braxton told us to go ahead and get the jury because you wanted a jury trial. I don't want you to make an uninformed decision. If you committed these offenses, any one of them, even if you, for example, are not sure if you did an Assault With Intent to Murder, maybe it's GBH, Great Bodily Harm. I don't know, all right. But on any one of these cases, you could be sentenced to far more than 25 years----than the 14 years that they're offering. On the car cases alone it's 11 more years. So I mean unless you got 11 more years----so ask yourself, I might beat this one, I might not beat this one, but even if I beat this one and they get me on this one, I've got 11 more years on a car case than if I would have gotten 14 total. So the issue is whether you're guilty or not guilty, whether you want to go to trial or whether you want to resolve the case for the 14 years. While the deputy is getting the jury I am going to let you talk to Ms. Braxton and make an informed decision. I don't want to send you to prison for 81 years----until you're 81 years old, 62-and-a-half years, when you can resolve the case for 14, you know. So in that instance, that's, what, almost 48 years difference. So unless----unless you have 48 years of extra time on your hands, you might want to consider the 14 years that they're offering, all right. You understand that?

         The judge asked petitioner to discuss the matter with his attorney, reminding him that his attorney was prepared for trial. (Id., pp. 10-11). The judge again explained to petitioner that “the only way you can control that outcome is through the plea bargain process” and if the case was turned over to the jury, petitioner was looking at 62-and-a-half years. (Id., pp. 11-12).

         After conferring with his attorney, the judge asked petitioner if his attorney had reviewed his confessions and the pictures [of the victim or crime scene] to petitioner. Petitioner replied that counsel had reviewed this evidence. (Id., p. 12). The judge specifically asked petitioner why he would want to go to a jury trial in light of the confessions. Petitioner indicated that in spite of the confessions, he wished to go to trial. The judge informed petitioner that his confession would be used against him if he went to trial. Petitioner replied no when asked if he wanted to do 750 months in prison. Counsel indicated on the record that she had visited petitioner four to five times in jail, had explained the sentencing guidelines and had reviewed the evidence with him, including the photographs and his confessions. Counsel indicated she was prepared to try the case but did not think it was in petitioner's best interest to do so. The judge indicated that petitioner faced a total of 19 counts. The judge again reiterated that the assault with intent to murder charges all carried up to life in prison. The prosecutor indicated that the fourteen year minimum sentence being offered was “a favorable number.” (Id., pp. 12-17). The judge again explained the plea offer to petitioner and all of the evidence against him, including his confessions. The judge gave petitioner five more minutes to decide. (Id., pp. 17-18). With respect to the confession, the judge asked petitioner: “I mean, if you admit to it, then there's really not much Ms. Braxton can do.” The judge explained that petitioner could go to trial and be acquitted, but with a confession, that would not be likely to occur. (Id., pp. 18-19).

         After a brief recess, the judge indicated that they had allowed petitioner to even make a telephone call to discuss the case with someone other than his attorney. The ...

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