Maslonka v. Hoffner

• Decision Date: 21 June 2017
• Docket Number: Civil No. 2:13-CV-14110
• Parties: NICHOLAS PAUL MASLONKA, Petitioner, v. BONITA HOFFNER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

NICHOLAS PAUL MASLONKA, Petitioner,
v.
BONITA HOFFNER, Respondent.

Civil No. 2:13-CV-14110

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 21, 2017

HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR A WRIT OF HABEAS CORPUS

Nicholas Paul Maslonka, ("Petitioner"), incarcerated at the Lakeland Correctional Facility, in Coldwater, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his counsel Andrew Wise and Jessica Lefort of the Federal Defender Office, challenging his conviction for armed robbery, M.C.L.A. § 750.529. Petitioner is currently serving a sentence of 15 to 25 years for the armed robbery conviction.

Petitioner raises a number of claims alleging the ineffective assistance of trial counsel, and subsequent ineffective assistance of appellate counsel, in addition to challenges pertaining to the voluntariness of his plea.

This Court finds that petitioner was denied the effective assistance of trial counsel when his attorney failed to appear at critical stages that required petitioner's cooperation, set forth by the prosecution, to fulfill the contingency of

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the plea agreement offered by the prosecution. Due to his attorney's absence, and subsequent allegations of insufficient cooperation on behalf of petitioner, petitioner was forced to accept a much less favorable plea offer, two hours prior to the commencement of his trial. In addition to this being a structural defect, the attorney did not provide adequate assistance of counsel, resulting in prejudice to the petitioner and requiring habeas relief. Accordingly, the petition for a writ of habeas corpus is CONDITIONALLY GRANTED.

I. Background

Petitioner was convicted following entry of a plea in the Macomb County Circuit Court.

At his arraignment on December 26, 2008, Detective Eidt met petitioner in the holding area and asked about drug trafficking connections. [Doc. 3, Pg ID 39; Doc. 10, Pg ID 807; Doc. 45, Pg ID 2372]. Petitioner provided Eidt with three names, which Eidt took to the Drug Enforcement Administration ("DEA") agents for review. [Id., Doc. 45 Pg ID 2376]. The agents were very interested and agreed to meet with petitioner. [Doc. 3, Pg ID 39-40, 807-808].

Four DEA agents visited petitioner at the jail on December 31, 2008. Petitioner requested counsel, but the agents informed him that "it was not their responsibility to" arrange that. [Id., Pg ID 40, 808, 2377]. The agents told petitioner that they would not "reschedule this" meeting with him and that "Either you are going to give help right now or we walk out this door and we are not

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coming back and anything you have coming is lost." [Doc. 45, Pg ID 2378]. Petitioner then spent three hours providing the agents with information related to his drug trafficking contacts. [Doc. 3, Pg ID 41; Doc. 10, Pg ID 809; Doc. 45 Pg ID 2378].

On January 6, 2009, the day of his preliminary hearing, petitioner met with his court-appointed attorney, Salle Erwin, who informed petitioner that Eidt told her that the DEA found his information "credible and exceptional" and wanted to schedule another interview. [Id., Doc. 45 Pg ID 2381]. Petitioner requested Erwin's presence at "any further potential interview with the DEA," to which she agreed. [Id., Pg ID 41-42, 809; Doc. 45 Pg ID 2383].

The following day petitioner was writted out of jail for a ride-along and meeting with DEA agents. [Id., Pg ID 42, 810; Doc. 9-1, Pg ID 796-801]. Although requested by petitioner to be there, Erwin was not present. For fear of losing a cooperation deal, petitioner proceeded without counsel. [Doc. 45, Pg ID 2386]. During the ride-along and meeting, which lasted for a total of six hours, petitioner allowed the agents to search his house and business for documents, and provided extensive information of an inter-state drug trafficking organization and its financial structure. [Doc. 3, Pg ID 42-43; Doc. 10, Pg ID 810-811; Doc. 9-1, Pg ID 796-801; Exhibit 53, U.S. Department of Justice, Drug Enforcement Administration, Report of Investigation; Doc. 45, Pg ID 2386-88].

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On February 5, 2009, DEA agents again met with petitioner for two hours and went over documents they obtained from his house and business. [Doc. 9-1, Pg ID 803-804]. Erwin was not present for this interview. [Id.; Doc. 10, Pg ID 811-12]. When petitioner asked the agents about his lawyer, they said that Erwin told Detective Eidt "that she was too busy with a bunch of cases that she had to take care of and she couldn't attend." [Doc. 45, Pg ID 2394].

At the subsequent pre-trial hearing on February 9, 2009, Erwin was not present and petitioner voiced concerns about Erwin's representation, which included her failure to meet with him and attend DEA interviews. [Doc 21-3, Pg ID 1461; Doc. 3, Pg ID 43; Doc. 9-1, Pg ID 745; Doc. 10, Pg ID 812]. Petitioner "expressed to the judge that [he] had grave concern[s] about [Erwin's] representation because she had totally been non-existent basically." [Doc. 45, Pg ID 2395]. The trial court judge agreed to hear petitioner's concerns, but asked that Erwin be present, and set another pre-trial date. [Doc. 9-1, Pg ID 745; Doc 21-3, Pg ID 1461].

The DEA and detective Eidt met again with petitioner in late February. [Doc. 3, Pg ID 45; Doc. 10, Pg ID 813]. Again, Erwin was not present. [Id.].

The final pre-trial conference took place on March 18, 2009. Erwin met with petitioner in lock-up and told him she had spoken to the federal and state prosecutors, and that Prosecutor Fox had agreed to make an offer which dismissed the habitual offender charge outright, resulting in a guidelines range of

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a minimum of nearly 7 years. [Doc. 21-5, Pg ID 1467-1469]. Erwin then said that she would also seek a downward departure based on petitioner's cooperation, and that Fox had agreed not to oppose the departure. [Doc. 10, Pg ID 815; Doc. 46, Pg ID 2419]. Erwin told petitioner that the offer was contingent on his testifying before a grand jury. [Doc. 3, Pg ID 46; Doc. 10, Pg ID 815].

Fox placed the state's "last best offer" on the record, which consisted of a guidelines range of 81-135 months (6 years, 9 months to 11 years, 3 months), and the dismissal of the habitual offender charge, based on petitioner's continued cooperation. Specifically, Fox informed the Court that there was "an intervening court proceeding before [the] scheduled trial that may effect whether [the] plea moves forward," referring to the upcoming hearing before the grand jury. [Doc. 9-1, Pg ID 753; Doc. 21-5, Pg ID 1467]. Fox stated that he would keep this offer open up until the day of trial. [Id.]. Due to a misunderstanding, Erwin indicated on the record that petitioner was hesitating to accept the deal. [Doc. 21-5, Pg ID 1468]. Petitioner requested a brief recess, during which time he informed Erwin this was the deal he had agreed to, except it was missing the agreement on the departure motion, to which she responded "that would come at sentencing." [Doc. 3, Pg ID 47-48; Doc. 10, Pg ID 816; Doc. 46, Pg ID 2422].

The judge then advised Erwin to visit petitioner before the grand jury hearing, to "make sure you are both on the same page," and Erwin agreed to do so. [Doc. 21-5, Pg ID 1469]. Petitioner "never [got] a visit from Ms. Erwin" prior to

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appearing before the grand jury on April 7th to provide testimony. [Doc. 3, Pg ID 48; Doc. 10, Pg ID 817; Doc. 46, Pg ID 2424].

Approximately three weeks later, on April 7th, petitioner met with DEA agents and an assistant U.S. attorney to review grand jury testimony. Erwin was not present. [Id.]. When petitioner said he would feel better if Erwin was present, he was told that there was not time to reschedule, and that they needed to prepare his testimony as soon as possible. [Id.; Doc. 46, Pg ID 2426].

Petitioner was writted out of the jail and spent thirty minutes reviewing his testimony with the federal prosecutor, who asked before leaving if the DEA agents could present a couple of questions to petitioner. [Id.]. The questions regarded individuals who were not connected with petitioner's grand jury testimony. [Id.] Following the discussion, the agents informed petitioner that the grand jury would not meet, that they had all the information they needed from him, and that his grand jury testimony was no longer necessary. [Id.; Doc. 46, Pg ID 2431].

On the day of trial, the prosecutor rescinded the plea offer citing lack of cooperation on April 7th, and offered a subsequent less favorable plea offer two hours before the commencement of petitioner's trial. [Doc. 21-6, Pg ID 1472].

Petitioner's conviction was affirmed on appeal. People v. Maslonka, No. 304898, *1 (Mich. Ct. App. Aug. 10, 2011), lv. den. 490 Mich. 974, 806 N.W.2d 739 (2011).

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While petitioner's direct appeal was pending, petitioner filed a motion to withdraw his guilty plea, which was construed as a post-conviction motion for relief from judgment filed pursuant to M.C.R. 6.500, et seq. and denied. People v. Maslonka, No. 2009-0045-FC (Macomb County Circuit Court, Nov. 3, 2010).¹ The Michigan appellate courts denied petitioner leave to appeal. People v. Maslonka, No. 305058 (Mich. Ct. App. March 23, 2012); lv. den. 493 Mich. 856, 821 N.W.2d 166 (2012).

On October 25, 2012, petitioner filed a second motion for relief from judgment, which was dismissed as a successive motion for relief from judgment. People v. Maslonka, No. 2009-0045-FC (Macomb County Circuit Court, Dec. 11, 2012).

Petitioner filed a petition for a writ of habeas corpus on September 26, 2013. Respondent filed an answer to the petition on December 16, 2013. On February 8, 2016, this Court appointed counsel to represent petitioner. On May 23, 2016, petitioner, through his new counsel, Andrew Wise and Jessica Lefort, filed a supplemental petition for a writ of habeas corpus, seeking relief on the on the basis of ineffective assistance of...