Mercurio v. MacLaren

Filing 6

MEMORANDUM OPINION and ORDER HOLDING THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE AND ADMINISTRATIVELY CLOSING THE CASE Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAMUEL JOSEPH MERCURIO,
Petitioner,

Case No. 17-11248

v.
HON. AVERN COHN
DUNCAN MACLAREN,
Respondent,
_________________________________/
MEMORANDUM AND ORDER
HOLDING THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE
AND ADMINISTRATIVELY CLOSING THE CASE
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Samuel Joseph
Mercurio (Petitioner) a state inmate proceeding pro se, has filed a petition for a writ of
habeas corpus challenging his convictions for unarmed robbery and being an habitual
offender. As will be explained, Petitioner has not exhausted his state court remedies
with respect to all of his claims. In lieu of dismissing the petition, the petition will be held
in abeyance to permit Petitioner to exhaust his additional claims in state court.
II. Background
Petitioner plead nolo contendere to the above charges in the Macomb County
Circuit Court. Petitioner’s conviction was affirmed on direct appeal. People v. Mercurio,
No. 328312 (Mich.Ct.App. Sept. 16, 2015); lv. Den. 499 Mich. 915 (2016).
On April 17, 2017, Petitioner filed the instant petition in which he seeks habeas

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relief on six grounds. By his own admission, Petitioner did not exhaust his fourth, fifth,
and sixth claims with the state courts.
III. Discussion
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254
must first exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“state prisoners must give the state courts one full fair opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy
this requirement, the claims must be “fairly presented” to the state courts, meaning that
the prisoner must have asserted both the factual and legal bases for the claims in the
state courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). A Michigan
prisoner must properly present each issue he seeks to raise in a federal habeas
proceeding to both the Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D.
Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
A federal district court has discretion to stay a petition to allow a petitioner to
present unexhausted claims to the state courts and then return to federal court on a
perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance
is available only in “limited circumstances” such as when the one-year statute of
limitations poses a concern, and when the petitioner demonstrates “good cause” for the
failure to exhaust state remedies before proceeding in federal court, the petitioner has
not engaged in intentionally dilatory litigation tactics, and the unexhausted claims are
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not “plainly meritless.” Id. at 277.
Here, Petitioner admits that he did not exhaust his fourth, fifth, and sixth claims
with the state courts. Petitioner’s unexhausted claims do not appear to be plainly
meritless and he does not appear to be engaged in dilatory litigation tactics. He also
has alleged good cause for not previously exhausting his new claims because he
asserts his appellate counsel was ineffective for failing to raise them during his direct
appeal. Finally, because Petitioner has an available remedy in state court–filing a
motion for relief from judgment under M.C.R. 6.500, Petitioner should exhaust this
remedy before presenting his claims in federal court.
In addition, dismissal of this case while Petitioner pursues state remedies could
result in a subsequent petition being barred by the one year statute of limitations found
in 28 U.S.C. § 2244(d). Thus, a stay is appropriate while Petitioner pursues additional
state remedies.
Where, as here, a district court determines that a stay is appropriate pending
exhaustion of state court remedies, the district court “should place reasonable time
limits on a petitioner’s trip to state court and back.” Rhines, 544 U.S. at 278. Therefore,
to ensure that there are no delays by Petitioner in exhausting his state court remedies,
the Court will impose upon Petitioner time limits within which he must proceed with his
state court post-conviction proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781 (6th
Cir. 2002).
III.
Accordingly, proceedings on the petition are STAYED pending completion of
Petitioner’s state court remedies.
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This stay is conditioned upon Petitioner filing his motion for relief from judgment
within sixty (60) days of this order and then re-filing his habeas petition—using the case
number already assigned to this case—within sixty (60) days after the conclusion of the
state court post-conviction proceedings.
To avoid administrative difficulties, the Clerk of Court shall CLOSE this case for
statistical purposes only. Nothing in this order or in the related docket entry shall be
considered a dismissal or disposition of this matter. See Sitto v. Bock, 207 F. Supp. 2d
668, 677 (E.D. Mich. 2002).
Upon receipt of a motion to reinstate the habeas petition following exhaustion of
state remedies, the Court may order the Clerk to reopen this case for further
proceedings.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: May 4, 2017
Detroit, Michigan

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