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Wershe v. Mackie

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

October 4, 2017

RICHARD WERSHE, Jr., Petitioner,
THOMAS MACKIE, Respondent.



         Richard Wershe. Jr., (“Petitioner”), currently on parole supervision wth the Michigan Department Of Corrections, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his life sentence for possession with intent to deliver more than 650 grams of cocaine and the Michigan Parole Board's refusals to release him parole. For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was charged with the above offense in 1987. At the time of the offense, petitioner was 17 years old. Petitioner was convicted following a jury trial in the Wayne County Circuit Court. Petitioner was sentenced to life in prison without parole.

         In 1992, subsequent to petitioner's conviction, the Michigan Supreme Court decided the case of People v. Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992), in which that court held that a mandatory sentence of life imprisonment without parole violated the Michigan Constitution's ban on “cruel or unusual punishments.” Id. at 37-41. To remedy the constitutional infirmity of the statute, the Supreme Court ordered that all persons convicted under the statute be granted “the parole consideration otherwise available upon completion of ten calender years of the sentence.” Id. at 42.

         Petitioner's sentence was amended to a parolable life sentence.

         Mich. Comp. Laws § 791.234(6), as amended by P.A.1998, No. 314, effective October 1, 1998, indicates that a defendant convicted of violating or conspiring to violate section 7401(2)(a)(i) of the public health code, the section under which the petitioner was convicted, shall be eligible for parole after serving seventeen and one half (17-½) years in prison. Under Mich. Comp. Laws § 791.234(9), a defendant's sentence under section 7401(2)(a)(i) may be further reduced another two and one half (2 ½) years if the sentencing judge or his or her successor determines that the defendant cooperated with law enforcement. If the defendant had no relevant or useful information, the judge is required to conclude that the defendant cooperated with the police.

         In 2000, petitioner's sentencing judge concluded that petitioner had cooperated with the police and was entitled to the 2-½ year reduction in his sentence.

         Petitioner was denied consideration for parole in 2003, 2008, and 2012.

         In 2015, petitioner filed a motion for relief from judgment with the trial court, challenging his sentence. The Wayne County Circuit Court granted petitioner's motion, ruling that petitioner's parolable life sentence was unduly severe, in light of the fact that petitioner was only seventeen years old at the time of the offense. The judge ordered that petitioner be re-sentenced at which time petitioner's youth at the time of the offense would be considered by the judge in determining whether to amend petitioner's sentence to a term of years. People v. Wershe, No. 87-004902-FC (Wayne Cty. Cir. Ct., Sep. 4, 2015).

         The Michigan Court of Appeals reversed the trial court's decision to grant post-conviction relief, on the ground that petitioner's post-conviction motion was a second motion for post-conviction relief that was barred under M.C.R. 6.502(G) and that petitioner's claim did not involve a retroactive change in law that would permit petitioner to file a successive post-conviction motion. People v. Wershe, No. 329110 (Mich.Ct.App. Sep. 29, 2015). The Michigan Court of Appeals further held that petitioner was not entitled to relief because the Supreme Court cases that he relied on in support of his claim were inapplicable to petitioner's parolable life sentence. Id.

         The Michigan Supreme Court denied petitioner leave to appeal. People v. Wershe, 879 N.W.2d 873 (Mich. 2016). Petitioner filed his habeas petition with this Court. While his petition was pending, the Michigan Parole Board on July 14, 2017 voted to grant petitioner parole. Petitioner was paroled to the State of Florida on August 22, 2017.[1]

         Petitioner seeks relief on the following grounds:

I. Petitioner is entitled to resentencing where he was originally sentenced to life without parole for a nonviolent crime committed as a juvenile with no consideration of the Graham or Miller factors and no consideration of sentencing guidelines.
II. The Court of Appeals order reversing the trial court constitutes a denial of Petitioner's right to equal protection under the 14th Amendment.
III. Parole eligibility under Michigan law does not provide a meaningful and realistic ...

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