United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION
FOR A WRIT OF HABEAS CORPUS
HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE
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.
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.
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 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
was convicted following entry of a plea in the Macomb County
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
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 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].
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].
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].
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].
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].
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.].
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 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].
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].
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 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].
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].
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
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].
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).
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).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).
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).
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 trial
and appellate counsel in violation of the Sixth Amendment,
and violations of his Fifth Amendment right to due process.
Respondent filed a response to the supplemental petition on
June 16, 2016.
evidentiary hearing was conducted before this Court on March
9, 2017 and March 10, 2017. The issues discussed at the
Whether there was an absence of counsel at a critical stage
of the proceedings, and
Whether counsel was ineffective when she failed to:
A) Place the cooperation agreement in writing, thereby
allowing Fox to withdraw the favorable plea offer on a mere
allegation of non-cooperation;
B) Obtain information from the DEA regarding petitioner's
C) Document the extent of petitioner's cooperation and
appraise the court at sentencing of the extensive cooperation
given by petitioner.
parties filed supplemental briefs on May 24, 2017, followed
by petitioner's reply brief filed on May 31, 2017.
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.