United States District Court, E.D. Michigan, Southern Division
CALVIN E. MARSHALL, Petitioner,
THOMAS WINN, Respondent,
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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?
DEFENDANT MARSHALL: Nineteen.
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?
DEFENDANT MARSHALL: Yes, sir.
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
(Id., pp. 5-7).
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).
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
DEFENDANT MARSHALL: Yes, sir.
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).
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).
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 ...