Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Murrell v. Winn

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

July 12, 2019

NICKALAS WILLARD MURRELL, Petitioner,
v.
TOM 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 PAUPERIS

          HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

         Nickalas Willard Murrell, (“Petitioner”), confined at the Saginaw Corrrectional Facility in Freeland, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C.§ 2254. In his application, filed pro se, petitioner challenges his conviction and sentence for operating a motor vehicle while intoxicated (OWI) causing death, Mich. Comp Laws § 257.625(4); attempted unauthorized use of a motor vehicle, Mich. Comp Laws §§ 750.414, 750.92; and being a third felony habitual offender, Mich. Comp Laws § 769.11. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. Background

         Petitioner was charged with eleven different charges and being a fourth felony habitual offender. Pursuant to a plea agreement with the Emmet County Prosecutor, petitioner pleaded no-contest to OWI causing death and attempted unauthorized use of a motor vehicle, in exchange for dismissal of the other eleven charges. The prosecutor also agreed that in exchange for petitioner agreeing to be sentenced as a third felony habitual offender, the original fourth felony habitual offender supplement would be dismissed. (Tr. 10/24/16, pp. 6-7, ECF 9-3, Pg ID 212-13, See also Joint Exhibit # 1-Plea Hearing, ECF 9-9, Pg ID 336-38). The prosecutor further indicated on the record that it would be the prosecutor's recommendation at sentencing that petitioner be sentenced within the sentencing guidelines range. The prosecutor noted that this recommendation would be non-binding on the sentencing court. (Id., p. 7, ECF 9-3, Pg ID 213). A written joint plea agreement that had been signed by the parties reiterated the nature of the plea and sentencing agreement and was made part of the court record. (Id., pp. 8-11, ECF 9-3, Pg ID 214-17).

         In his written plea agreement, petitioner expressly stated the following:

I have no objection to the Hon. James N. Erhart [a district court judge] sitting as the Circuit Court Judge for the limited purpose[] of taking my no contest pleas. I specifically waive any objection that I might otherwise have to the Hon. Charles W. Johnson [a circuit court judge] imposing my sentence.
(Joint Plea Ex., p. 2, ECF 9-9, Pg ID 337).

         On December 15, 2016, petitioner was sentenced by Judge Johnson to twenty to thirty years on the OWI causing death conviction and a concurrent one year sentence on the attempted unauthorized use of a motor vehicle conviction. (Tr. 12/15/16, p. 31, ECF 9-4, 259). Petitioner's sentence was a departure above the sentencing guidelines range of 62-171 months. (Id., pp. 9, 26-31, ECF 9-4, 237, 254-59).

         Petitioner filed a motion to withdraw his no-contest plea or in the alternative for a re-sentencing. Petitioner claimed in his motion that the prosecutor breached the plea agreement by failing to orally recommend at sentencing that the judge remain within the sentencing guidelines. Petitioner also claimed that his rights were violated when he was not sentenced by the same judge who accepted his no-contest plea. At the hearing on the motion, petitioner indicated that he no longer sought to withdraw his no-contest plea, but wished to proceed with the re-sentencing. (Tr. 6/29/17, p. 3, ECF 9-5, Pg ID 264).

         Judge Johnson denied the motion for re-sentencing. The judge first noted that petitioner had executed a written waiver as part of his plea agreement where he waived any objection to the district court judge taking his plea but to being sentenced by a different judge. (Id., p. 8-9, ECF 9-5, 269-70). The judge further found that the prosecutor did not breach the plea agreement by failing to verbally allocate at sentencing that petitioner should be sentenced within the sentencing guidelines. Judge Johnson noted that the prosecutor's recommendation that petitioner be sentenced within the guidelines was part of the record. Judge Johnson observed that the prosecutor did not ask the judge at sentencing to exceed the sentencing guidelines. Judge Johnson stated that he was aware of the prosecutor's agreement to recommend that petitioner be sentenced within the guidelines range, having reviewed the joint exhibit, the plea exhibit, and by reference to the agreement and sentencing recommendation in the pre-sentence investigation report. The face sheet of the pre-sentence investigation report, in fact, stated: “The Emmet County Prosecuting Attorney's Office agreed not to seek a sentence outside the advisory state guidelines.” Judge Johnson indicated that he was aware of the prosecutor's recommendation but chose to sentence petitioner above the sentencing guidelines range. The judge concluded that the plea agreement had not been breached and denied the motion for re-sentencing. (Id., pp. 9-10, ECF 9-5, 270-71).

         Petitioner's plea and sentencing was affirmed. People v. Murrell, No. 339439 (Mich.Ct.App. Sept. 6, 2017); lv. den. 910 N.W.2d 277 (2018).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. The prosecutor breached the plea agreement when he failed to make the agreed-upon sentencing.
II. Murrell's rights were violated when he was not sentenced by the judge who took his plea; and,
III. Murrell's sentence was unreasonable where it violated the principle of proportionality.

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.