United States District Court, E.D. Michigan, Southern Division
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 ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE
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
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).
written plea agreement, petitioner expressly stated the
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).
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).
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).
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).
plea and sentencing was affirmed. People v. Murrell,
No. 339439 (Mich.Ct.App. Sept. 6, 2017); lv. den.
910 N.W.2d 277 (2018).
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.