Mercurio v. Kowalski

         HON. AVERN COHN

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          Paul D. Borman Presiding U.S. District Judge

         I. Introduction

         This is 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.

         II. Procedural History

         Following 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).

         In 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).

         Petitioner 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).

         On March 27, 2019, the Court reopened the case and directed service of Petitioner's amended petition. (ECF No. 11).

         Petitioner 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 court.

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.

         III. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the ...