United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
D. Borman Presiding U.S. District Judge
a habeas case under 28 U.S.C. § 2254. Petitioner Samuel
Joseph Mercurio, (Petitioner), is on parole supervision with
the Michigan Department of Corrections through the Macomb
County Parole Office. Petitioner was convicted on his plea of
no-contest to unarmed robbery, M.C.L. § 750.530 and
being a fourth felony habitual offender, M.C.L. §
769.12. Petitioner filed a pro se petition for writ
of habeas corpus claiming that he is incarcerated in
violation of his constitutional rights. Respondent, through
the Attorney General's Office, filed a response, arguing
that petitioner's claims are meritless, procedurally
defaulted and/or non-cognizable. For the reasons which
follow, the petition will be denied.
his plea to the above offenses, Petitioner was sentenced to
65 months to 27 years imprisonment. The Michigan appellate
courts affirmed his conviction and sentence on direct appeal.
People v. Mercurio, No. 328312 (Mich. Ct. App. Sept.
16, 2015); lv. Den. 499 Mich. 915 (2016).
2017, Petitioner filed a petition for writ of habeas corpus.
The Court held the petition in abeyance to permit Petitioner
to return to the state courts to exhaust additional claims.
(ECF No. 6).
then filed a post-conviction motion for relief from judgment
with the state trial court, which was denied. People v.
Mercurio, No. 13-2222-FH (Macomb Cty. Cir. Ct., July 6,
2017)(ECF No. 9-1, PageID. 184-88). The Michigan appellate
courts denied petitioner leave to appeal. People v.
Mercurio, No. 341580 (Mich. Ct. App. June 11, 2018);
lv. Den. 503 Mich. 914 (2018).
March 27, 2019, the Court reopened the case and directed
service of Petitioner's amended petition. (ECF No. 11).
seeks habeas relief on the following grounds:
I. The trial court violated Mr. Mercurio's state and
federal constitutional rights to due process in denying his
motion to withdraw his plea prior to sentencing, where his
plea agreement was coerced and there was no substantial
prejudice to the prosecutor.
II. Mr. Mercurio is entitled to withdraw his “no
contest” plea where the trial court misinformed him
that he had the “right to appeal” at both the
plea hearing and at the sentencing hearing rendering Mr.
Mercurio's plea not understanding in violation of the
Michigan court rules.
III. Mr. Mercurio is entitled to withdraw his “No
Contest” plea where he received erroneous and
conflicting information about his likely minimum sentence
range. Thus rendering his plea not knowing and intelligent
and therefore, not voluntary, and in violation of his state
and federal constitutional rights to due process.
Alternatively, trial counsel's conflicting advice
constitutes ineffective assistance of counsel, rendering the
plea involuntary in violation of the due process provisions
of the state and federal constitutions.
IV. The defendant's 8th and 14th amendment rights were
violated when his bond was revoked and forfeited at a court
hearing he was not notified to attend.
V. The defendant's 6th and 14th amendment rights were
violated when he was denied the right to be present at a
court proceeding that affected his liberty where he was not
informed the proceeding would occur.
VI. The defendant was denied due process of law and subject
to prosecutor misconduct where the prosecutors misled the
VII. The defendant's 6th amendment right was violated
when he was denied the fair assistance of appellate counsel
where the attorney failed to appeal the due process
violations and prosecutor misconduct.
VIII. The trial court violated defendant's right to due
process when it abused its discretion by not addressing three
of the merits raised in the motion for relief from judgment
under M.C.R. 6.500.
IX. Defendant was denied due process when the trial court did
not answer a motion for reconsideration of the issues raised
on July 18, 2017.
X. The defendant was denied due process where the trial court
failed to serve a copy of the hearing disposition ordering
the court to set aside judgment after bond forfeiture on
March 26, 2014.
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the