UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ADAM KORESJZA, 

Petitioner, 

 Case No. 14-11716 

v. HON. TERRENCE G. BERG 

SHIRLEE HARRY, 

Respondent. 

 / 

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS 

CORPUS, (2) DENYING PETITIONER’S PENDING MOTIONS, (3) 

GRANTING A CERTIFICATE OF APPEALABILITY, AND (4) GRANTING 

PERMISSION TO APPEAL IN FORMA PAUPERIS

This is a habeas case brought by a Michigan prisoner under 28 U.S.C. ' 2254. 

Petitioner Adam Koresjza was convicted after he pled guilty in the Wayne Circuit 

Court to ten criminal charges arising out of his participation in an embezzlement 

scheme. The most serious convictions were for one count of conducting a criminal 

enterprise, MICH. COMP. LAWS §750.159, and for three counts of embezzlement over 

$100,000. MICH. COMP. LAWS §750.1747. He was sentenced to concurrent terms of 

78 months to 20 years for these three offenses and lesser concurrent terms for his 

other six offenses. The petition raises three claims: (1) the trial court failed to 

specifically enforce the terms of the plea agreement, (2) Petitioner’s plea was 

coerced by an illusory promise of a fixed sentence, and (3) Petitioner’s right to a 

speedy trial was violated.1 The Court will deny the petition because the state court 

 

1 Petitioner has filed multiple supplemental pleadings in this case. In some of these pleadings he 

appears to raise claims of ineffective assistance of counsel which were never presented to the state 

courts. Petitioner has withdrawn his unexhausted claims, and is proceeding on the three exhausted 

claims listed above. See Dkts. 26 and 27, p. 16. 

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adjudication of his claims did not involve an unreasonable application of clearly 

established Supreme Court law. The Court will also deny Petitioner’s pending 

motions, but will grant Petitioner a certificate of appealability and permission to 

proceed on appeal in forma pauperis. 

I. FACTUAL BACKGROUND 

Petitioner was investigated and charged with crimes alleging that he 

embezzled large sums of money from the City of River Rouge. The case did not go to 

trial. Instead, on September 27, 2010, Petitioner pled guilty to one count of 

conducting a criminal enterprise, three counts of embezzlement over $100,000, four 

counts of embezzlement over $50,000, and two counts of failing to file tax returns. 

At the plea hearing, Petitioner’s counsel stated that the plea agreement had 

been negotiated with the Michigan Attorney General’s office and reduced to writing, 

and it included a document referred to by the parties as “Exhibit A.” (Tr. 9/27/10, 5). 

Exhibit A was to be kept out of the public record because Petitioner had been 

assaulted, and it detailed Petitioner’s promises to cooperate with authorities 

regarding other prosecutions. (Id. at 5-6). Petitioner signed the plea agreement and 

Exhibit A. (Id. at 10). 

Respondent has filed a copy of Exhibit A under seal with the Court. (Dkt. 22). 

The Court has reviewed the document. In general terms the document required 

Petitioner to cooperate with another specified prosecution and indicated the plea 

agreement would be invalidated if he did not do so. The exhibit does not contain any 

information regarding a sentencing agreement. 

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Petitioner attached a copy of the written plea agreement to his petition. In 

pertinent part it states that after pleading guilty, Petitioner would be sentenced to 

a fixed term of 78 months for the racketeering and embezzlement charges and lesser 

fixed terms for the other charges. The agreement also provided that if Petitioner 

was able to make restitution by a certain date, he would be sentenced to a fixed 

term of 60 months instead of 78 months. (Plea Agreement, Dkt. 1, Ex. A, ¶ 3). 

The trial court placed Petitioner under oath and informed him of all the trial 

rights he would be waiving by pleading guilty. (Tr. 9/27/10, 11-13). Petitioner denied 

that anyone had forced him to plead guilty or had promised him anything other 

than what was set forth in the plea agreement. (Id. at 13). The prosecutor then 

recited the ten counts Petitioner would be pleading guilty to, and she stated that if 

a specified sum of restitution—$706,143.98—was made by a certain date, the 

sentence on the most serious charges would be 60 months, but if restitution was not 

made the sentence would be 78 months. (Id. at 16-17). Petitioner then testified to a 

factual basis for the plea. (Id. at 18-23). The trial court set a sentencing date after 

the deadline for Petitioner to make restitution. 

The sentencing hearing was not held until June 3, 2011. Petitioner was 

unable to make the required amount of restitution. (Tr. 6-3-2011, 14). The court 

stated it was therefore sentencing Petitioner under the terms of the plea agreement 

to 78 months for the four most serious counts, and 34 months on the other counts. 

(Id. at 20-21). 

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The court clerk asked about the “tail” for the sentences. (Id. at 22). The court 

noted that the statutory maximum for the criminal enterprise offense was 40 years 

and the statutory maximum for the more serious embezzlement offenses was 30 

years. (Id. at 22). The record indicates that the parties were uncertain as to whether 

the 78 months was the maximum or whether it was the statutory maximum. The 

prosecutor responded that 78 months was the “tail” because of the agreement. (Id.) 

The clerk stated there had to be both a minimum and maximum term. (Id.) Defense 

counsel then said the maximum term would have to be 78 months because that was 

what was agreed to. (Id.) The court stated that 78 months could not be the 

maximum sentence. (Id.) The proceedings then went off the record for about an 

hour. 

When proceedings resumed, the prosecutor indicated that she spoke with her 

division chief, and she learned that under Michigan law, the maximum term was 

set by statute, and the agreed-to term would have to serve as the minimum term. 

(Id. at 23). The prosecutor stated that she could at least eliminate the habitual 

offender charge and reduce the maximum sentence to 20 years on the most serious 

charges and 15 years on the other charges. (Id.) The prosecutor’s position seemed to 

be that these maximum terms had to be included in the plea agreement because “we 

don’t have the authority to change Michigan law.” (Id. at 24). 

Defense counsel vehemently disagreed: “Our position is that we had agreed to 

a maximum. Not one moment, not one second, not one minute, not one month more 

[than] 78 months, period. That was designed and drafted by the Attorney General’s 

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office . . . And I just spoke with Mr. Koresjza, his understanding was that he would 

serve a maximum of 78 months in prison . . . I would like to enforce the agreement.” 

(Id. at 25-26). The court adjourned the hearing. (Id. at 26-27). It found that there 

“had not been a meeting of the minds here. Because there’s no question that 

Michigan law requires that there be a minimum and a maximum in terms of the 

sentence.” (Id.) 

The trial court docket sheet shows that sentencing hearings were rescheduled 

for June 27, 2011, and July 21, 2011, but both hearings were adjourned. The next 

hearing on the case was heard on July 29, 2011. Petitioner asserts, and the Court 

will accept as true, that during this interval the trial court offered Petitioner the 

opportunity to withdraw his plea and proceed to trial, but Petitioner rejected the 

offer and continued to assert his right to the original sentencing agreement. 

Respondent was only able to produce an excerpt of the transcript for July 29, 

2011. A part of the tape is missing due to a malfunction in the recording device. (See

Dkt 1, Ex. G) (affidavit of court reporter). The relevant portion of the existing 

transcript starts with the court indicating that the sentencing agreement had been 

altered to comply with state law: 

The Court was correcting specific provisions of this plea 

agreement because it was clear to this court that the record and 

the defendant’s understanding of the terms of his sentencing, 

meaning, the amount of time that he would be incarcerated, were 

not clear. That is what this Court has corrected. And there isn’t 

anything else that has been brought to this Court’s attention that 

needs to be corrected. 

(Id. at 7-8). 

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 The court then stated it was sentencing Petitioner “pursuant to the plea 

agreement” to 78 months to 20 years on the four most serious counts and to lesser 

concurrent terms on the other counts. (Id. at 9-10). The court then asked if the 

parties agreed with the sentences imposed, and both the prosecutor and defense 

counsel indicated that they did. (Id. at 12). Defense counsel stated: “Yes, your 

Honor, I believe you recited what was in the plea agreement.” (Id.) 

Respondent has submitted an affidavit of the prosecutor summarizing the 

missing portion of the proceedings. The prosecutor asserts that before the court 

passed sentence, it set forth the plea agreement with the minimum and maximum 

sentences, and it explained to Petitioner how the Michigan sentencing guidelines 

operate. She further asserts that Petitioner affirmed that he understood the 

agreement and that the maximum sentences would be set by statute. (Dkt. 17, Ex. 

A). 

Petitioner strongly disagrees with the prosecutor’s characterization of what 

occurred between the aborted sentencing hearing and the final sentencing hearing. 

He asserts that he never agreed to the new sentence, but that he only indicated his 

understanding of what he would be sentenced to. He asserts that he never 

abandoned his position that he was entitled to enforcement of the original 

agreement to a flat 78-month term. He further asserts that he rejected the offer to 

withdraw his plea because he had already fulfilled his obligations under the 

agreement and no longer had any leverage to negotiate another plea deal. (See, e.g.,

Dkt. 27-1, pp. 4, 7; Dkt. 29). 

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Following his conviction and sentence, Petitioner filed a delayed application 

for leave to appeal in the Michigan Court of Appeals as well as a pro se 

supplemental brief, raising the following claims: 

I. The failure of the trial court to specifically enforce the terms of the 

sentence agreement resulted in a violation of defendant’s right to due 

process of law. 

II. Was plea a coerced and illusory plea with fraud in the inducement? 

III. Was speedy trial violated? 

The Michigan Court of Appeals denied Petitioner’s delayed application “for 

lack of merit in the grounds presented.” People v. Koresjza, No. 311260 (Mich. Ct. 

App. April 26, 2013). Petitioner then filed an application for leave to appeal in the 

Michigan Supreme Court, where he raised the same claims that he raised in the 

Michigan Court of Appeals, as well as several additional claims. On October 28, 

2013, the Michigan Supreme Court denied the application because it was not 

persuaded that the questions presented should be reviewed. People v. Koresjza, 838 

N.W.2d 163 (Mich. 2013). 

II. STANDARD OF REVIEW 

28 U.S.C. § 2254(d) sharply curtails a federal court’s review of constitutional 

claims raised by a state prisoner in a habeas corpus action if the claims were 

rejected on the merits by the state courts. Relief is barred under this section unless 

the state court adjudication was “contrary to” or resulted in an “unreasonable 

application of” clearly established Supreme Court law. 

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“A state court’s decision is ‘contrary to’ . . . clearly established law if it 

‘applies a rule that contradicts the governing law set forth in [Supreme Court 

cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a 

decision of [the Supreme] Court and nevertheless arrives at a result different from 

[this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) 

(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). 

“[T]he ‘unreasonable application’ prong of the statute permits a federal 

habeas court to ‘grant the writ if the state court identifies the correct governing 

legal principle from [the Supreme] Court but unreasonably applies that principle to 

the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting 

Williams, 529 U.S. at 413. 

Demonstrating that a state court unreasonably applied clearly established 

Supreme Court law is no easy task because “[a] state court’s determination that a 

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 

U.S.86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

“Section 2254(d) reflects the view that habeas corpus is a guard against extreme 

malfunctions in the state criminal justice systems, not a substitute for ordinary 

error correction through appeal . . . As a condition for obtaining habeas corpus from 

a federal court, a state prisoner must show that the state court’s ruling on the claim 

being presented in federal court was so lacking in justification that there was an 

error well understood and comprehended in existing law beyond any possibility for 

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fairminded disagreement.” Harrington, 562 U.S. at 103 (internal quotation 

omitted). 

III. ANALYSIS 

A. Specific Performance of the Plea Agreement 

 Petitioner’s first two claims seek specific performance of the original plea 

agreement. His first claim argues that the parties agreed to fixed terms, the longest 

of which was 78 months imprisonment. Petitioner asserts that he fulfilled his 

obligations under the agreement, and he denies that he ever agreed to modify the 

plea agreement to include the statutory maximum sentences. He asserts that 

federal law entitles him to specific performance of the original sentence agreement. 

Petitioner’s second claim asserts that his plea was involuntary because it was 

induced by the unfulfilled sentence agreement. Petitioner, however, does not seek 

habeas relief conditioned on an invalidation of his plea and a grant of a new trial. 

Rather, Petitioner seeks only specific performance of the original agreement. (See, 

e.g., Dkt. 9, p. 9; Dkt. 20, pp. 7, 15; Dkt. 27, pp. 13, 15; Dkt. 29, p. 3). 

 Respondent argues that despite errors in the initial plea agreement, after the 

trial court explained to the parties that Michigan law required a maximum sentence 

set by statute to go along with a minimum sentence, Petitioner ultimately agreed to 

the sentence that was imposed rather than withdraw his plea. Respondent asserts 

that Petitioner therefore waived any claim that he is entitled to the originally 

agreed upon sentence. Respondent further denies that Petitioner was coerced into 

entering into the revised sentencing agreement. 

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 Petitioner rejoins that Respondent has suppressed what occurred at 

additional hearings held in the trial court that were not made part of the record. 

Petitioner asserts that during these proceedings Petitioner “vehemently objected to 

the plea withdrawal scenario and steadfastly asserted that he (petitioner) had 

complied with his end of the bargain and was entitled to specific performance of the 

plea deal.” (Dkt. 27, 3-4). Petitioner states that the trial court’s offer of a plea 

withdrawal was a “veiled threat,” given that Petitioner had already admitted under 

oath to committing the crimes when he testified to the factual basis for the plea at 

the initial plea hearing. (Id. at 13). Petitioner further argues that there is no record 

evidence that he personally agreed to any modification of the plea agreement as 

attested to in the prosecutor’s affidavit. (Id. at 7). Petitioner claims that when he 

was asked by the court whether he agreed with the sentence at the final sentencing 

hearing, he was merely indicating he understood what was happening, and he was 

not accepting the amended agreement. (Id. at 7-8). 

 The Michigan Court of Appeals summarily rejected Petitioner’s claims “for 

lack of merit in the grounds presented,” and the Michigan Supreme Court denied 

leave to appeal. Nevertheless, where the state appellate court has issued a 

summary affirmance, as here, it is strongly presumed to have been made on the 

merits, and a federal court cannot grant relief unless the state court's result is not 

in keeping with the strictures of § 2254(d). Johnson v. Williams, 133 S. Ct. 1088, 

1094, 185 L. Ed. 2d 105 (2013); Werth v. Bell, 692 F.3d 486, 494 (6th Cir. 2012) 

(holding that a summary denial of leave to appeal by a Michigan appellate court is 

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considered a decision on the merits entitled to deference). Accordingly, in order to 

demonstrate entitlement to the relief he seeks, Petitioner must show that clearly 

established Supreme Court law entitles him to specific performance of the original 

plea bargain as opposed to having been given an opportunity to withdraw his plea. 

Santobello v. New York constitutes clearly established Supreme Court law 

governing Petitioner’s claims. 404 U.S. 257 (1971). In Santobello, the Supreme 

Court held that “when a plea rests in any significant degree on a promise or 

agreement of the prosecutor, so that it can be said to be part of the inducement or 

consideration, such promise must be fulfilled.” Id. at 262. Under Santobello, 

however, the appropriate remedy for the government’s breach of a plea agreement is 

either specific performance of the agreement or an opportunity to withdraw the 

plea. It is properly left to the discretion of the trial court whether to order specific 

performance of the plea agreement or to allow a defendant to withdraw his plea and 

proceed to trial. Id. at 262. The Supreme Court has noted that the Constitution does 

not require a trial court to order specific performance of a plea agreement rather 

than withdrawal of the plea. Mabry v. Johnson, 467 U.S. 504, 510, n. 11. (1984); see 

also Puckett v. United States, 556 U.S. 129, 137 (2009); Peavy v. United States, 31 F. 

3d 1341, 1346 (6th Cir. 1994). 

 The plea bargain struck by the parties in this case called for a fixed term of 

78 months for the most serious charges and lesser fixed terms for the other offenses. 

There is nothing in the record that suggests that the upper-end statutory 

maximums were implied or somehow otherwise understood to be part of the plea 

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agreement. And the Court will also accept Petitioner’s unrebutted assertions that 

he complied with his end of the bargain by admitting his guilt and cooperating with 

authorities in the other prosecutions. It can also be assumed arguendo that 

Petitioner never abandoned his claim to specific performance in the trial court. 

 Petitioner makes a compelling argument that in such a situation—where the 

prosecution already received the benefit of Petitioner’s promises—simply allowing 

Petitioner to withdraw his plea and stand trial is an inadequate remedy. Obviously, 

in such a situation, the prosecution gains the substantial benefit of a defendant’s 

cooperation, and in return the defendant finds himself in a position no better than 

he was in when he was originally charged. 

 While this is true, it is also indisputably true that the plea agreement called 

for a sentence that was invalid under state law. Michigan has an indeterminate 

sentencing scheme, requiring both a minimum and maximum term to be imposed by 

the sentencing court. The maximum sentence is set by statute and the trial court 

determines the minimum sentence in accordance with the sentencing guidelines. 

See MICH. COMP. LAWS 769.8(1) (“When a person is convicted . . . for committing a 

felony and the punishment prescribed by law for that offense may be imprisonment 

in a state prison, the court imposing sentence shall not fix a definite term of 

imprisonment, but shall fix a minimum term, except as otherwise provided in this 

chapter. The maximum penalty provided by law shall be the maximum sentence in 

all cases except as provided in this chapter and shall be stated by the judge in 

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imposing the sentence.”) State law prohibited the trial court from imposing the fixed 

sentence agreed to by the parties. 

 Accordingly, and despite the inequities of the situation, when the matter 

came to light at sentencing, the trial court had no authority to allow Petitioner to 

specifically enforce a sentencing agreement with illegal terms. Instead—and as 

acknowledged by Petitioner—the trial court gave him the less appealing option to 

withdraw his plea. The offered remedy, though less beneficial to Petitioner, was not 

completely without value. It would have set aside Petitioner’s convictions, restored 

his trial rights, and forced the prosecution to prove its case. It is true that Petitioner 

lost all the leverage he had to strike another deal, but after all, “there is no 

constitutional right to plea bargain . . . .” Weatherford v. Bursey, 429 U.S. 545, 561 

(1977). 

 While the remedy offered by the trial court was not ideal, it is difficult to see 

any other option. Courts confronted with this situation have noted that when a plea 

agreement is breached by the government because it contains an unfulfillable 

promise the only adequate remedy is to allow the defendant to withdraw his plea. 

See, e.g., United States v. Cooper, 70 F.3d 563, 567 (10th Cir. 1995). Obviously, the 

trial court could not impose a sentence that violated state law. It therefore offered 

the only other remedy available under Santobello, a withdrawal of the plea and the 

resulting restoration of Petitioner’s trial rights. 

 It was enough to satisfy Santobello that the trial court offered Petitioner the 

opportunity to withdraw his plea and stand trial. And therefore when the state 

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appellate courts summarily rejected Petitioner’s claims, they did so without 

unreasonably applying clearly established Supreme Court law. See, e.g., United 

States v. Foster, 527 F. App’x 406, 409-410 (6th Cir. 2013) (there is no authority for 

the proposition that when the government breaches a plea bargain the trial court 

must enforce the bargain rather offer a plea withdrawal). 

 Setting aside Respondent’s waiver argument, Petitioner makes a powerful 

claim that his plea was nevertheless coerced in violation of Due Process because it 

was induced by the unenforceable sentence agreement. See Brady v. United States, 

397 U.S. 742, 755 (1970) (“A situation in which a defendant is induced by deception, 

an unfulfillable promise, or misrepresentation to enter a plea of guilty . . . renders a 

plea involuntary.”) And the facts of this case as alleged by Petitioner certainly 

support a claim to set the plea aside. But it is clear from Petitioner’s pleadings both 

in the state courts and in this Court that he does not pray to have his guilty plea 

and conviction reversed, the only remedy he seeks is specific performance of the 

sentencing agreement, a remedy that the state court was not able to offer under 

clearly established Supreme Court law. Petitioner is not asking to have his plea set 

aside, whether it was involuntary or not, simply so that he can stand trial. 

 Accordingly, Petitioner’s first two claims will be denied because clearly 

established Supreme Court law did not compel the state courts to grant him specific 

performance of the original sentencing agreement, his only exhausted form of 

requested relief. 

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B. Speedy Trial 

 Petitioner also claims that his right to a speedy trial was denied due to the 

protracted proceedings in the trial court. It is well-established, however, that an 

unconditional guilty plea constitutes a waiver of all pre-plea, non-jurisdictional 

constitutional deprivations. Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also

United States v. Broce, 488 U.S. 563, 569 (1989). The Supreme Court has explained: 

[A] guilty plea represents a break in the chain of events which 

has preceded it in the criminal process. When a criminal 

defendant has solemnly admitted in open court that he is in fact 

guilty of the offense with which he is charged, he may not 

thereafter raise independent claims relating to the deprivation of 

constitutional rights that occurred prior to the entry of the guilty 

plea. He may only attack the voluntary and intelligent character 

of the guilty plea by showing that the advice he received from 

counsel was not within [constitutional standards]. 

Tollett, 411 U.S. at 267. Simply stated, a defendant who pleads guilty or no contest 

waives any non-jurisdictional claims that arose before the entry of his plea. Speedy 

trial and pre-arraignment delay claims are non-jurisdictional issues which are 

waived by an unconditional plea. See Howard v. White, 76 F. App’x 52, 53 (6th Cir. 

2003) (speedy trial claim is not jurisdictional); Shanks v. Wolfenbarger, 387 F. Supp. 

2d 740, 747 (E.D. Mich. 2005); see also United States v. Pickett, 941 F.2d 411, 416 

(6th Cir. 1991) (failure to enter conditional guilty plea prevented defendant from 

raising speedy trial and due process challenges on appeal). Because Petitioner’s 

claims concern the alleged deprivation of non-jurisdictional constitutional rights 

that occurred before the entry of his plea, review of his speedy trial claim is barred. 

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C. Pending Motions 

 Petitioner has filed a motion for discovery and a motion for immediate 

consideration. (Dkts. 30 and 31). He seeks to prove that there was an agreement for 

a fixed sentence and that he never agreed to any other sentence. In light of the fact 

that the Court rejects Petitioner’s claim to specific performance even assuming 

these allegations to be true, Petitioner’s pending motions are denied as moot. 

IV. CERTIFICATE OF APPEALABILITY 

In order to appeal the Court=s decision, Petitioner must obtain a certificate of 

appealability. To obtain a certificate of appealability, a prisoner must make a 

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To 

demonstrate this denial, the applicant is required to show that reasonable jurists 

could debate whether the petition should have been resolved in a different manner, 

or that the issues presented were adequate to deserve encouragement to proceed 

further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may 

grant or deny a certificate of appealability when the court issues a ruling on the 

habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002). Here, 

jurists of reason could debate whether the petition should have been resolved in a 

different manner. Petitioner has made a strong showing that he only pled guilty due 

to an unfulfillable promise made by the prosecutor. The Court will therefore grant a 

certificate of appealability. The Court will also grant permission to appeal in forma 

pauperis because an appeal of this decision can be taken in good faith. 28 U.S.C. '

1915(a)(3). 

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V. CONCLUSION 

Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a 

writ of habeas corpus, 2) DENIES Petitioner’s pending motions, 3) GRANTS a 

certificate of appealability, and 4) GRANTS permission to appeal in forma 

pauperis. 

SO ORDERED. 

Dated: August 16, 2016 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on August 16, 

2016, using the CM/ECF system; a copy of this Order was also mailed to 13221 

Woodward Ave, Rm. 518, Highland Park, Michigan 48203 directed to Petitioner’s 

attention. 

 s/A. Chubb 

Case Manager 

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