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Crowell v. Mackie

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

July 20, 2017

RICHARD K. CROWELL, JR., Petitioner,
v.
THOMAS MACKIE, Respondent.

          OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

          DAVID M. LAWSON, UNITED STATES DISTRICT JUDGE

         Petitioner 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 untimely.

         I.

         The 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.

         The 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.

         On 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.

         The 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).

         In 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.

         The 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.

         In 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.

         The 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.

         On July 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 failed ...


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