Blocksom v. Klee

Filing 44

ORDER Denying 26 Motion for Bond Pending Review of Petitioner's Habeas Petition. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN BLOCKSOM,
Petitioner,

Case No. 11-cv-14859
Hon. Matthew F. Leitman

v.
PAUL KLEE,
Respondent.
____________________________/
ORDER DENYING MOTION FOR BOND PENDING REVIEW OF
PETITIONER’S HABEAS PETITION (ECF #26)
INTRODUCTION
The United States Supreme Court has repeatedly emphasized that federal
habeas relief functions only as a “guard against extreme malfunctions in the state
criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786
(2011). Petitioner Stephen Blocksom (“Blocksom”) has made a substantial
preliminary showing here – through supporting affidavits and transcript excerpts –
that he may have been the victim of just such an “extreme malfunction.”
Blocksom entered into a very favorable plea agreement – so favorable that,
at sentencing, a state court judge declined to impose the sentence that Blocksom
had agreed to serve. Instead, the judge gave Blocksom two options: (1) persist in
his plea and serve a slightly longer sentence or (2) withdraw the plea and go to
trial.

The judge then made statements that Blocksom reasonably could have
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interpreted to mean that if he withdrew the plea and went to trial, his maximum
exposure following a conviction would be one year in custody.

Blocksom’s

appointed defense attorney also apparently told Blocksom that his maximum
exposure would be one year in custody if he withdrew his plea and proceeded to
trial. Blocksom says that in reliance on the statements by the judge and his lawyer,
he withdrew his plea and proceeded to trial.
In reality, Blocksom’s maximum exposure upon withdrawing his plea was
not one year in custody. Rather, Blocksom’s exposure once he withdrew his plea
was life in prison. Blocksom was convicted at trial and ultimately sentenced to 920 years in state prison – a term that is between 9 and 20 times greater than the
maximum exposure he was apparently told that he would face if convicted at trial.
Blocksom appealed, and his appointed appellate lawyer filed Blocksom’s
appeal before ordering, and before ever reviewing, the district court transcripts –
which, of course, would have revealed the state court judge’s statements about
Blocksom’s maximum sentencing exposure. And Blocksom’s appellate counsel
did not argue on appeal that Blocksom’s trial counsel was ineffective for providing
inaccurate advice regarding Blocksom’s maximum potential sentence.
If proven, all of this would appear to amount to the very type of “extreme
malfunction” that would entitle Blocksom federal habeas relief.

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Respondent counters that Blocksom’s entitlement to relief depends, in part,
on Blocksom’s credibility – on whether a court believes that Blocksom, in fact,
relied upon the advice of his attorney and the statements by the state court judge –
and Respondent rightly points out that he has not yet had an opportunity to crossexamine Blocksom on the reliance issue. Respondent further insists that Blocksom
could not have reasonably relied on the statements at issue by the state court judge.
Respondent likewise raises a number of procedural objections to Blocksom’s claim
for relief. All of Respondent’s arguments warrant serious consideration.
Blocksom seeks habeas relief on two claims: ineffective assistance of trial
counsel and ineffective assistance of appellate counsel. Currently before the Court
is Blocksom’s request for release on bond pending review of these habeas claims.
(See ECF #26.) Because Blocksom has not exhausted his ineffective assistance
claims in state court, this Court has entered an Order holding his habeas petition in
abeyance and allowing him to present the claims to a state court in a motion for
relief from judgment under Rule 6.500 et seq. of the Michigan Court Rules. (See
ECF #43.) Blocksom asks this Court to release him from custody while the state
court reviews his claims and, if the state court denies the claims, while this Court
then reviews them. (See ECF #26.)
Despite the strength of Blocksom’s preliminary showing on the merits, for
all of the reasons stated herein, the Court DENIES his motion for release on bond.
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A petitioner seeking release on bond pending federal review of his habeas claims –
i.e., before obtaining any relief – bears a very high burden and must make a
showing of exceptional circumstances going beyond the strength of his claims on
their merits. Blocksom has not made such a showing, and he is thus not entitled to
an order from this Court releasing him at this time. Blocksom may ultimately be
entitled to relief from this Court, but he is not entitled to release now.
RELEVANT FACTUAL BACKGROUND1
On December 29, 2005, Blocksom was charged in a two-count
Misdemeanor Complaint in the 95B District Court for the State of Michigan. (See
the “Misdemeanor Complaint,” ECF #21-2 at 1, Pg. ID 906.) Count I charged
indecent exposure in violation of M.C.L. § 750.335a; that charge was a one-yearmisdemeanor.

(See id.)

Count II charged Blocksom with being a sexually

delinquent person in violation of M.C.L. § 750.10a.

(See id.)

This charge

subjected Blocksom to an enhanced sentence of “1 day to life.” (See id.) Attorney
Thomas Byczek was appointed to represent Blocksom in the state district court
(hereinafter, Blocksom’s “district court attorney”).
Prior to Blocksom’s scheduled trial, his district court attorney and the statecourt prosecutor reached an agreement on a plea bargain.

1

As the prosecutor

In setting forth the factual background above, the Court is not making any factual
findings. Instead, it is setting forth the facts as it understands them based upon the
current state of the record.
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explained during a March 31, 2006, plea hearing, “[i]n exchange for an acceptable
plea of guilty or no contest to the charge of Indecent Exposure, [the State of
Michigan would] dismiss the Sexually Delinquent Person Notice and recommend a
30 day jail cap.” (ECF #21-5 at 3, Pg. ID 927.) Pursuant to this agreement,
Blocksom entered a plea of no contest and the state district court accepted that
plea.
On May 18, 2006, Blocksom appeared before the state district court for
sentencing. At that sentencing hearing, the state district court judge refused to
accept the prosecution’s recommendation of a 30-day sentence. The judge told
Blocksom instead that he would impose a sentence of 180-days in custody, with 90
days suspended. (See ECF #21-6 at 4-5, Pg. ID 936-937.) The judge also told
Blocksom that because he intended to impose a stricter sentence than the one to
which Blocksom had agreed in his plea bargain, that Blocksom had the “option []
of withdrawing [his] plea” and proceeding to trial.

(Id. at 5, Pg. ID 937.)

Critically, the judge also informed Blocksom that if he went to trial, that “I would
be free to sentence you up to a maximum of a year in the county jail.” (Id.) The
judge said nothing about any possible greater exposure – i.e., beyond the one-year
sentence – that Blocksom could face if he withdrew his plea and proceeded to trial.
Before making a decision on the state district court’s offer, Blocksom met
with his district court attorney. That attorney explained to Blocksom the two
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options he had to choose from: (1) maintain his plea and accept the district court’s
stiffer sentence; or (2) withdraw his plea and go to trial, with the understanding
that if Blocksom was convicted, Blocksom could be sentenced to a year in custody.
According to Blocksom, his district court attorney specifically told him that even if
he was convicted, his maximum possible sentence was one year and that the
enhanced sentence for the sexually delinquent person charge was “off the table.”
(Affidavit of Stephen Blocksom, ECF #22-2 at ¶3.)

Blocksom’s district court

attorney has further confirmed that, at the time of this conversation with Blocksom,
it was his belief that Blocksom could only “face a sentence of one year.” (Affidavit
of Thomas Byczek, ECF #22-1 at ¶5.) After weighing these options, Blocksom
chose to withdraw his plea and go to trial in the district court on the misdemeanor
indecent exposure charge. Blocksom was convicted at trial.
On July 13, 2006, before the state district court could impose a sentence on
Blocksom, the state-court prosecutor filed a felony Information in the 41st Circuit
Court that contained the same two charges as the Misdemeanor Complaint:
Indecent Exposure and Sexually Delinquent Person. (See ECF #21-3 at 1, Pg. ID
916.) Blocksom thereafter went to trial in the state circuit court. At this second
trial, the jury was informed that Blocksom was guilty of the predicate Indecent
Exposure offense and that its only decision was to determine whether Blocksom
was or was not a Sexually Delinquent Person under Michigan law. The jury
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concluded that Blocksom was a Sexually Delinquent Person, and the state circuit
court imposed a sentence of 9-20 years in custody. Blocksom has now served
approximately eight years of that sentence.
Following Blocksom’s conviction, attorney Michael Skinner was appointed
to represent Blocksom in Blocksom’s appeal (hereinafter, Blocksom’s “appellate
counsel”). Blocksom’s appellate counsel filed an appellate brief with the Michigan
Court of Appeals on October 18, 2007. Importantly, this brief was filed before
Blocksom’s appellate counsel ever ordered or had a chance to review the district
court transcripts, which were not prepared and filed with the Michigan Court of
Appeals until early November. Blocksom’s appellate counsel did not seek relief
for Blocksom based upon (1) the state district court’s statement that if Blocksom
withdrew his plea, that the state district court could only sentence Blocksom to a
year in custody, and (2) Blocksom’s district court attorney wrongly informing
Blocksom that, if convicted at trial, Blocksom faced a maximum sentence of one
year.
In early December 2007, Blocksom’s appellate counsel informed the
Michigan Court of Appeals that he had become seriously ill and that he would be
requesting substitute counsel be appointed to replace him in Blocksom’s appeal.
Substitute counsel, however, was never appointed, and Blocksom’s appellate
counsel took no further action to advance Blocksom’s appeal. Appellate counsel,
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for example, never supplemented Blocksom’s initial appellate briefing to include
information related to the district court transcripts once they were prepared, did not
file a reply brief in support of Blocksom’s appeal, and did not participate in oral
argument. Appellate counsel now concedes that the district court transcript –
which he failed to review before submitting Blocksom’s appellate brief – “gives
rise to an obvious claim of ineffective assistance of counsel on the basis that Mr.
Blocksom was misinformed about the potential consequences of withdrawing his
misdemeanor no contest plea,” and that he had no “strategic purpose” for failing to
raise an ineffective assistance of counsel claim in Blocksom’s appeal.

(See

Affidavit of Michael Skinner, ECF #22-5 at ¶¶6-7.)
On October 21, 2008, the Michigan Court of Appeals denied Blocksom’s
appeal and affirmed his sentence. See People v. Blocksom, 2008 WL 4648846
(Mich. Ct. App. Oct. 21, 2008). Blocksom, without the assistance of his appellate
counsel, filed a pro se Application for Leave to Appeal with the Michigan
Supreme Court on December 4, 2008. The Michigan Supreme Court denied that
application on June 10, 2009. (See ECF #22-4 at 4, Pg. ID 980.)
On November 4, 2011, Blocksom, acting pro se, filed a petition for a writ of
habeas corpus in this Court. (See ECF #1.) This Court appointed the Federal
Defender’s Office to represent Blocksom in these federal habeas proceedings on
March 21, 2014. (See ECF #12.) Blocksom thereafter filed an unopposed motion
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to amend his habeas petition to add claims for ineffective assistance of trial counsel
and ineffective assistance of appellate counsel. (See ECF #22.) The Court granted
Blocksom’s motion to amend on August 5, 2014. (See ECF #23.)
Blocksom filed his instant Motion for Bond on September 10, 2014. (See
ECF #26.) On December 18, 2014, the Court entered an Order staying – in all
respects except for the Court’s consideration of this bond motion – this federal
habeas proceeding so that Blocksom could first present his claims in state court.
(See ECF #43.)

The Court held oral argument on Blocksom’s motion on

December 8, 2014, and for all the reasons stated herein, it denies Blocksom’s
request for bond.
ANALYSIS
This Court has “inherent authority” to grant bond to a habeas petitioner
while his petition is under review. Nash v. Eberlin, 437 F.3d 519, 526, n. 10 (6th
Cir. 2006). But that authority is narrow. “Since a habeas petitioner is appealing a
presumptively valid state court conviction, both principles of comity and common
sense dictate that it will indeed be the very unusual case where a habeas petitioner
is admitted to bail prior to a decision on the merits in the habeas case.” Lee v.
Jabe, 989 F.2d 869, 871 (6th Cir. 1993). “In order to receive bail pending a
decision on the merits, prisoners must be able to show not only a substantial claim
of law based on the facts surrounding the petition but also the existence of ‘some
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circumstance making [the motion for bail] exceptional and deserving of special
treatment in the interests of justice.” Dotson v. Clark, 900 F.2d 77, 79 (6th Cir.
1990) (quoting Aronson v. May, 85 S.Ct. 3, 5, 13 (1964) (Douglas, J., in
chambers)). Simply put, “[m]erely to find that there is a substantial question is far
from enough.” Lee, 989 F.2d at 871 (quoting Glynn v. Donnelly, 470 F.2d 95, 98
(1st Cir. 1972)).
Neither the United States Supreme Court nor the United States Court of
Appeals for the Sixth Circuit has provided definitive guidance for determining
whether a petitioner’s “circumstances” are so “exceptional” as to justify release
pending review of his habeas claims. Unpublished decisions from this Court
suggest that “exceptional circumstances” warranting release during review “have
been limited to situations where (1) the prisoner was gravely ill, (2) the prisoner
committed a minor crime and is serving a short sentence, or (3) possibly where
there was an extraordinary delay in processing the habeas petition.” Scheidler v.
Berghuis, 07-cv-01346, 2008 WL 161899 (E.D. Mich. 2008) (citations omitted);
see also Milstead v. Sherry, 07–cv-15332, 2009 WL 728540 (E.D. Mich. 2009)
(citation omitted). This much is clear: federal courts very rarely find “exceptional
circumstances” and very rarely release petitioners before ruling on the merits of

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their claims. Indeed, there seem to be but a handful of decisions in which federal
courts have released petitioners pending review of their claims.2
Blocksom’s claim of exceptional circumstances does not fit into any of the
three categories mentioned in this Court’s above-cited decisions, nor are his
circumstances “exceptional” in any other respect.

Stripped to its essence,

Blocksom’s “exceptional circumstances” claim is that (1) the errors here were truly
egregious and (2) it is fundamentally unfair for him to serve even one day more in
custody than the one-year maximum he was told he could face if he withdrew his
plea. But having a very strong habeas claim, as Blocksom says he does, is plainly
not enough to warrant release pending review. Lee, supra.

And, almost by

definition, every petitioner who is actually entitled to relief based upon an
available and meritorious habeas claim, as Blocksom insists he is, suffers
fundamental unfairness – the serving of a sentence that is tainted by serious
constitutional error and that would not have been imposed but for the error. Thus,
Blocksom’s claim of unfairness does not meaningfully distinguish him from other

2

Coincidentally, this Court is one of the few that has released a petitioner pending
review of his claims. See Puertas v. Overton, 272 F.Supp.2d 621 (E.D. Mich.
2003). In Puertas, this Court found that the petitioner’s grave medical condition
amounted to “exceptional circumstances,” which, when coupled with his showing
of a substantial legal claim, entitled him to release pending review. The petitioner
in Puertas suffered from advanced bladder cancer, and the Court did not believe
that he could receive adequate treatment in custody. Thus, the “exceptional
circumstance” was that keeping the petitioner in custody could lead to his death.
See Puertas, 272 F.Supp.2d at 628-30.
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petitioners with winning habeas claims – and does not make his case
“exceptional.”3
Blocksom resists this conclusion.

Blocksom distinguishes himself from

most other habeas petitioners with meritorious claims on the ground that he is
entitled to an unconditional writ of habeas corpus – one that will preclude any
further proceedings against, or incarceration of, him. Even if Blocksom is correct
with respect to the type of writ that would issue if he prevails (and Respondent
insists he is wrong), that would not elevate Blocksom’s circumstances to the
“exceptional” level.

Indeed, Blocksom has not cited any authority for the

proposition that the type of habeas relief to potentially be granted – i.e., a
conditional versus and unconditional writ – is relevant to whether the “exceptional
circumstances” requirement is satisfied.
The Court further notes that the conclusions of the mental health experts
who have evaluated Blocksom weigh against releasing him at this time. (See ECF
## 32, 33, and 40.)
CONCLUSION
For the reasons explained above, IT IS HEREBY ORDERED that
Blocksom’s motion for release on bond (ECF #26) is DENIED. While Blocksom
3

It is at least conceivable that in some future case a petitioner may make a showing
of fundamental unfairness that is so distinct from other petitioners that it elevates
his circumstances to truly “exceptional.” But Blocksom has not made such a
showing here.
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is not entitled to release at this time, he deserves prompt and careful review of his
serious claims.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 22, 2015
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 22, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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