United States District Court, E.D. Michigan, Southern Division
RICHARD K. CROWELL, JR., Petitioner,
THOMAS MACKIE, Respondent.
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF
M. LAWSON, UNITED STATES DISTRICT JUDGE
Richard K. Crowell, Jr., a state prisoner at the Carson City
Correctional Facility in Carson City, Michigan, has filed a
pro se habeas corpus petition challenging his 1993
plea-based convictions in Wayne County, Michigan for sexual
assault and firearms offenses. The petitioner was sentenced
as a third-offense habitual offender to lengthy prison terms.
Although he did not pursue a direct appeal, he filed
post-conviction motions in the state court long after his
convictions became final. Those were unsuccessful. The issues
raised in those motions form the basis of his habeas
petition. But because the petitioner filed his habeas
petition well after the one-year habeas statute of
limitations expired, the Court must dismiss the petition as
petitioner initially was charged with assault with intent to
commit rape, possession of a firearm during a felony (felony
firearm), and possession of a loaded firearm in a vehicle. He
was also charged with being a fourth-offense habitual
offender. On October 4, 1993, the petitioner pleaded no
contest to assault with intent to commit rape, Mich. Comp.
Laws § 750.520g(1), and felony firearm, Mich. Comp. Laws
§ 750.227b. In return, the Wayne County prosecutor
dismissed the count charging the petitioner with possessing a
loaded firearm in a vehicle. The prosecutor also agreed to
reduce the habitual offender count from habitual offender
fourth offense, to habitual offender third offense.
petitioner pleaded “no contest” instead of
“guilty” because of a “clouded memory as to
the details” and “some prospect of civil
liability.” Plea Tr. at 9 (Oct. 4, 1993). The trial
court used the investigator's description of the crime as
a factual basis for the plea, which read:
That a Mervin Willman and the defendant Richard Crowell
essentially located a female . . ., 26 years old; that they
ordered her into the car at gunpoint; that she was compelled
to undress for the purpose of giving sex; that an argument
ensued between Mr. Willman and Mr. Crowell as to whom would
have sex first; that ultimately the defendants became
concerned about the police and ordered the complainant out of
the vehicle while she was nude and then left. The complainant
alerted the police and the police then had a description of
the car and that a short time later there was a police chase.
The vehicle was stopped, both defendants were inside, and the
gun was located in the car.
Id. at 13.
October 19, 1993, the trial court sentenced the petitioner as
a third felony offender, Mich. Comp. Laws § 769.11, to
two years in prison for the felony firearm conviction and a
consecutive term of four to fifteen years in prison for the
assault conviction. The court also ordered the sentence to
run consecutively to a 1989 Oakland County conviction for
which the petitioner was on parole when he committed the
Wayne County crimes.
petitioner appealed his convictions, but subsequently agreed
with the prosecution to withdraw his appeal. On February 14,
1994, the Michigan Court of Appeals dismissed the appeal on
the basis of the parties' stipulation. See People v.
Crowell, No. 171616 (Mich. Ct. App. Feb. 14, 1994).
2002, the petitioner filed a motion for relief from judgment.
He argued that (1) his trial counsel's gross misadvice
concerning community placement and parole eligibility
amounted to ineffective assistance; (2) his plea was
unknowing and involuntary due to trial counsel's gross
misadvice regarding community placement and parole
eligibility; (3) the Michigan Parole Board breached the plea
agreement; (4) application of the sex-offender registration
law violated the Ex Post Facto Clauses of the
Federal and Michigan Constitutions; (5) a sentence
consecutive to his 1989 Oakland County sentence violated the
Ex Post Facto Clauses; and (6) the prosecution
failed to establish the “intent” element of the
crime and also failed to refute his intoxication defense.
trial court denied the petitioner's motion in a written
opinion. It held that the plea was knowingly, voluntarily,
and intelligently made, trial counsel was not ineffective,
the petitioner could have raised all his claims, including
the ones about the sex offender registration act, on direct
appeal, the sentence was valid, and the prosecutor was not
required to negate every innocent theory offered by the
defense. People v. Crowell, No. 93-000611-01, (Wayne
Cty. Cir. Ct. July 3, 2002). The petitioner did not appeal
the trial court's decision.
2012, the petitioner filed a second motion for relief from
judgment in which he alleged that trial counsel was
ineffective by failing to advise him that his Wayne County
sentence would run consecutively to the Oakland County
sentence for which he was on parole when he committed the
crimes in Wayne County. The petitioner also alleged that his
Wayne County sentence could not be consecutive to his Oakland
County sentence because the Oakland County trial court
dismissed the substantive charges in that case and sentenced
him only as a habitual offender.
trial court denied the petitioner's motion on the basis
that the petitioner's claims lacked merit and that he
failed to meet the criteria for filing a successive motion
for relief from judgment. People v. Crowell, No.
93-006111-01 (Wayne Cty. Cir. Ct. August 22, 2013). The
petitioner moved for reconsideration and for correction of
his sentence, but the trial court found no errors and denied
both motions. People v. Crowell, No. 93-006111-01
(Wayne Cty. Cir. Ct. Apr. 7, 2014 and Sept. 17, 2014). The
petitioner did not appeal the trial court's decisions.
21, 2014, the petitioner filed his habeas corpus petition
under 28 U.S.C. § 2254. He appears to raise the two
claims that he presented to the state trial court in his
second motion for relief from judgment: that his plea
attorney was ineffective and that his sentence cannot be
consecutive to his Oakland County sentence because the
Oakland County convictions were vacated. The respondent
argues in her answer to the petition that the
petitioner's claims are time-barred, procedurally
defaulted, and meritless. Because the petitioner clearly