Maslonka v. Hoffner

• Citation: 900 F.3d 269
• Decision Date: 14 August 2018
• Docket Number: No. 17-1834,17-1834
• Parties: Nicholas MASLONKA, Petitioner-Appellee, v. Bonita J. HOFFNER, Warden, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

900 F.3d 269

Nicholas MASLONKA, Petitioner-Appellee,

v.Bonita J. HOFFNER, Warden, Respondent-Appellant.

No. 17-1834

United States Court of Appeals, Sixth Circuit.

Argued: April 26, 2018

Decided and Filed: August 14, 2018

Rehearing En Banc Denied September 19, 2018^*

ARGUED: Scott R. Shimkus, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Appellant. Jessica Lefort, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Scott R. Shimkus, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Appellant. Jessica Lefort, Andrew N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellee.

Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

After Nicholas Maslonka robbed two banks to obtain money to support his drug habit, he pleaded guilty in Michigan state court to armed robbery as a third habitual offender. During his plea-negotiation process, in an attempt to secure a better plea deal, Maslonka began to cooperate with federal authorities in a separate federal investigation. But when Maslonka did not cooperate to the full satisfaction of the federal authorities, the state prosecutor withdrew the favorable plea offer. Maslonka blames this on his state-appointed trial counsel, and brought this habeas corpus petition alleging that, among other things, his trial counsel rendered constitutionally ineffective assistance during the state plea negotiations. The district court agreed and granted Maslonka’s petition. But we disagree. Even assuming Maslonka’s trial counsel was constitutionally deficient, Maslonka has not shown that this deficiency prejudiced him. We therefore REVERSE and REMAND for the district court to address only Maslonka’s remaining ineffective-assistance-of-appellate-counsel claims.

I.

Nicholas Maslonka is a Michigan state prisoner currently serving a sentence of fifteen to twenty-five years’ imprisonment for armed robbery under Michigan Compiled Laws § 750.529 as a third habitual offender. This conviction arose from a December, 2008, armed bank robbery in which Maslonka, a heavy heroin user at the time, entered a bank in St. Clair Shores, MI, and told a teller that he had a gun and needed money. After the teller gave him money, Maslonka left. Maslonka was arrested and initially charged with armed robbery as a fourth habitual offender.

Days later, and before the state had even appointed an attorney for Maslonka, a state detective approached Maslonka about cooperating with federal Drug Enforcement Agency ("DEA") agents in a federal drug-trafficking investigation. Maslonka v. Hoffner , No. 2:13-CV-14110, 2017 WL 2666103, at *1 (E.D. Mich. June 21, 2017). In exchange, Maslonka would receive some consideration from the state. Although the details of this consideration were initially fuzzy, the state prosecutor eventually made his "best offer" to Maslonka in open court: in exchange for Maslonka’s "very best of cooperation," the state would dismiss Maslonka’s fourth-habitual-offender charge outright, resulting in a state guidelines range of 81 to 135 months’ imprisonment. See id. at *2. Privately, the state prosecutor told Maslonka’s counsel that he would recommend a prison sentence at the low end of the state guidelines range. The state prosecutor could not offer any formal sentencing agreement, however, because the state judge overseeing Maslonka’s case always adamantly refused to enter into any sentencing agreements with parties. Maslonka’s "very best of cooperation" would have to include, at minimum, testifying before a federal grand jury in the federal drug trafficking case, if not also at a subsequent federal trial. See id. Maslonka understood this and agreed to testify before the grand jury. At no point, however, did either the federal or state authorities provide written details of the cooperation they expected from Maslonka, and at no point did Maslonka’s counsel ask either state or federal authorities for a written cooperation agreement. See id. at *11. Maslonka’s counsel apparently also never asked for Maslonka’s cooperation to be limited to providing information about only some individuals, never sought additional details about what federal or state authorities expected from Maslonka beyond his grand jury testimony, and did not advise Maslonka about what was expected from him other than telling Maslonka to "cooperate to the best of his ability." See id. ; id. at *9.

As the state proceedings progressed, Maslonka had several meetings with DEA agents, and eventually with an Assistant United States Attorney ("AUSA") or two. The first of these meetings happened days after Maslonka’s arrest, and before Maslonka first met with his state-appointed counsel. See id. at *1. Even after Maslonka had been appointed counsel, the federal authorities came to the jail on multiple occasions without giving Maslonka or his counsel notice. But Maslonka claims that during his third meeting with federal authorities they told him that his counsel had given them permission to proceed without her. Regardless, Maslonka’s counsel did not attend any of these meetings between Maslonka and the federal authorities. See id. at *6.

When it came time for Maslonka to testify before the federal grand jury, his counsel was once again not present. See id. at *3. An AUSA and the DEA agents met with Maslonka for a preparation session immediately before his scheduled testimony. See id. Maslonka and the federal authorities would later tell different stories about what happened during that preparation session. Maslonka claimed that the DEA agents began to ask him questions about his close friends and family and that he refused to provide any information about them to the federal authorities because he believed that his agreement to cooperate required only that he testify about three particular drug traffickers. According to Maslonka, when he would not provide this information about his close friends and family, the federal authorities became angry and did not allow Maslonka to testify before the grand jury. According to the federal authorities, Maslonka "changed his story," "became very belligerent" and "hostile," and did not want to testify before the grand jury. In any event, Maslonka ultimately did not testify before the grand jury. See id.

When the state prosecutor learned that Maslonka had not cooperated to the satisfaction of the federal authorities, he rescinded his offer to dismiss Maslonka’s fourth-habitual-offender charge. See id. Instead, the state prosecutor made an offer that he had planned to make before he learned about Maslonka’s potential federal cooperation. Under this less-favorable offer, the state prosecutor would reduce Maslonka’s habitual-offender charge from a fourth-habitual-offender charge to a third-habitual-offender charge.

Maslonka pleaded guilty to armed robbery under Michigan Compiled Laws § 750.529 as a third habitual offender. The resulting estimated state guidelines range was 108 to 270 months’ imprisonment. While entering his plea, Maslonka testified that he was satisfied with his counsel’s advice and services. Maslonka later testified that during this court appearance, his counsel had a sidebar conversation with the judge about his attempted cooperation, but that the judge said that Maslonka would "g[e]t nothing for [his] cooperation."

At sentencing, the state asked that Maslonka’s sentence be "as lengthy as possible." Maslonka’s counsel asked the judge to "go below the guidelines" because Maslonka had "hurt no one but himself" and argued that his crimes were merely "crimes against property" to obtain drugs to satisfy his addiction. Maslonka’s counsel did not, however, ask the judge for a downward variance based on Maslonka’s attempted cooperation, even though Maslonka claims she promised to do so.

Maslonka unsuccessfully challenged his plea and sentence through both direct appeals and state collateral proceedings. See id. Maslonka first raised his ineffective-assistance-of-trial-counsel claims in his second motion for relief from judgment. See id. at *5. The Michigan Court of Appeals dismissed this as an impermissible successive motion for relief from judgment. See id. at *3.

Maslonka then filed a pro se 28 U.S.C. § 2254 habeas corpus petition in the district court. See id. Altogether, Maslonka’s petition and supporting affidavit, memorandum, and exhibits spanned over 1300 pages. The district court ordered the state to file a response, and the state filed an answer in which it attempted to summarize and categorize Maslonka’s claims. Three years later, the district court appointed counsel to represent Maslonka in this habeas proceeding, and each side submitted supplemental briefs. See id. The district court then ordered an evidentiary hearing on Maslonka’s ineffective-assistance-of-trial-counsel claims, in which Maslonka, his counsel, the state prosecutor, two DEA agents, and an AUSA testified. See id. at *3–4. Afterwards, the parties filed supplemental briefs. See id. The district court ultimately granted Maslonka’s habeas corpus petition, and the state appealed.

II.

A.

The state first argues that Maslonka procedurally defaulted his ineffective-assistance-of-trial-counsel claims. "[A] federal court may not review federal claims that were procedurally defaulted in state courts." Davila v. Davis , ––– U.S. ––––, 137 S.Ct. 2058, 2064, 198 L.Ed.2d 603 (2017). This "fundamental tenet[ ] of federal review of state convictions," id. , ensures that federal courts show the respect to "the States and the States’ procedural rules" that our federalist system requires, Shorter v. Ohio Dep’t of Rehab. and Corr. , 180 F.3d 723, 725 (6th Cir. 1999) (quoting Coleman v. Thompson , 501 U.S. 722, 726, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ). "A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an...