Maslonka v. Hoffner
OPINION and ORDER denying 35 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NICHOLAS PAUL MASLONKA,
Civil No. 2:13-CV-14110
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION
Nicholas Paul Maslonka, (“Petitioner”), filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, through his attorneys Andrew Wise and
Jessica Lefort of the Federal Defender Office, challenging his conviction for
armed robbery, M.C.L.A. § 750.529.
On September 26, 2016, this Court ordered an evidentiary hearing on
petitioner’s claim that he 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 an original
plea agreement offered by the prosecution.
Respondent filed a motion for reconsideration of the Court’s order. For the
reasons that follow, the motion for reconsideration is DENIED.
U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for
reconsideration. A motion for reconsideration should be granted if the movant
demonstrates a palpable defect by which the court and the parties have been
misled and that a different disposition of the case must result from a correction
thereof. Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 774 (E.D. Mich. 2004);
Hence v. Smith, 49 F. Supp. 2d 547, 550-51 (E.D. Mich. 1999 (citing L.R.
7.1(g)(3)). A motion for reconsideration which merely presents “the same issues
ruled upon by the Court, either expressly or by reasonable implication,” shall be
denied. Ward, 340 F. Supp. 2d at 774.
Respondent in his motion for reconsideration argues that this Court erred in
determining that petitioner had set forth a colorable claim for relief because
respondent argues that petitioner unequivocally rejected the original plea
agreement and had by his own admission stopped cooperating with the police.
Respondent further contends that this Court erred in concluding that the State
had waived its procedural default defense by failing to assert it in its original
answer. Respondent claims that his failure to raise the procedural default
defense earlier should be excused because petitioner did not in his original
petition clearly and unequivocally raise a claim that he was denied the assistance
of counsel at a critical stage of the proceedings.
Respondent’s motion for reconsideration will be denied, because
respondent is merely presenting issues which were already ruled upon by this
Court, either expressly or by reasonable implication, when the Court concluded
that respondent waived its procedural default defense and ordered an evidentiary
hearing on petitioner’s claim. See e.g. Hence v. Smith, 49 F. Supp. 2d at 553. In
particular, petitioner raised his claim involving the denial of counsel at a critical
stage at several points in his original habeas petition. In their initial answer,
respondent acknowledged that petitioner was raising a claim that he was denied
the assistance of counsel at the critical stage when he was attempting to
cooperate with the Drug Enforcement Agency in order to obtain a plea. See
Answer, p. 4 [This Court’s Dkt. # 20]. Respondent was aware of petitioner’s claim
when he filed his original answer and not only failed to assert a procedural default
defense in that answer, but affirmatively waived a procedural default defense,
after listing the claims that are now at issue. Petitioner continued to raise the
claims in his reply brief, to which Respondent again failed to raise any claims of
procedural default. Respondent failed to show that this Court erred in concluding
that he had waived his procedural default defense by failing to raise it in his initial
answer and is thus not entitled to reconsideration of the Court’s order.
Based upon the foregoing, IT IS ORDERED that the Motion for
Reconsideration [Dkt. # 35] is DENIED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: December 16, 2016
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on December 16, 2016, by electronic and/or ordinary
S/Catherine A. Pickles
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