Maslonka v. Hoffner

Filing 50

ORDER Conditionally Granting 1 Petition for Writ of Habeas Corpus. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NICHOLAS PAUL MASLONKA,
Petitioner,

Civil No. 2:13-CV-14110
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
BONITA HOFFNER,

Respondent.
____________________________________/
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

2

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 trial and appellate counsel in violation of the
Sixth Amendment, and violations of his Fifth Amendment right to due process.

1

The judge construed the motion to withdraw as a motion for relief from judgment, because
petitioner sought to withdraw his guilty plea more than six months after he had been sentenced. Under
M.C.R. 6.310(c), a defendant may file a motion to withdraw the plea within six months after sentence. If a
defendant wishes to withdraw a guilty plea more than six months after being sentenced, he or she may do
so “only in accordance with the procedure set forth in subchapter 6.500.” [The Michigan Court Rule
governing post-conviction relief]. Id.

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Respondent filed a response to the supplemental petition on June 16, 2016.
An evidentiary hearing was conducted before this Court on March 9, 2017
and March 10, 2017. The issues discussed at the hearing were:
1) Whether there was an absence of counsel at a critical stage of the
proceedings, and
2) 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
cooperation; and
C) Document the extent of petitioner’s cooperation and
appraise the court at sentencing of the extensive cooperation
given by petitioner.
The parties filed supplemental briefs on May 24, 2017, followed by
petitioner’s reply brief filed on May 31, 2017.
II. Standard of Review
28 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:
An 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; or
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(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.
A 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. at 410-11.
III. Discussion
Petitioner contends that he was denied the effective assistance of counsel
when his attorney failed to appear at meetings scheduled with the DEA, which
were the basis of a cooperation agreement entered into by petitioner in
exchange for a plea to armed robbery with a sentence of 81-135 months (6
years, 9 months to 11 years, 3 months) on the minimum sentence and dismissal
of the habitual offender charge. Petitioner further claims that due to counsel’s
absence, as well as counsel’s failure to place the terms of the cooperation
agreement into writing or familiarize herself with the terms of the cooperation

9

agreement, petitioner was placed in a precarious position when the prosecution
withdrew the offer, claiming that petitioner did not sufficiently fulfill the terms of
the cooperation agreement, and then offered petitioner a much less favorable
plea, two hours prior to the commencement of petitioner’s trial. [Doc. 21-6, Pg ID
1472]. Rather than outright dismissal of the habitual charge and a minimum
guideline sentence of 81-135 months (6 years, 9 months to 11 years, 3 months),
petitioner was given the option of accepting a plea to a habitual third and 108 to
270 months (9 years to 22 years, 6 months) on the minimum guidelines, or to
proceed to trial. Petitioner accepted the plea and was ultimately sentenced to 15
to 25 years in prison.
Petitioner contends in his Habeas Petition, pp. 6-8, 19, supplemental
attachments, and his Supplemental Reply brief, page 11, that he was denied
representation throughout the plea negotiation process and had counsel
participated in the grand jury preparation, and met with him prior to the grand
jury hearing, or been present at the hearing, she could have cleared up any
confusion as to what was expected of petitioner and whether the terms of the
cooperation agreement had been met. More importantly, had counsel secured a
written cooperation agreement outlining petitioner’s obligations, petitioner would
not be in the position, on the day of trial, of having to prove that he met the terms
of the cooperation agreement, so as to be entitled to the plea offer.

10

Respondent contends that petitioner’s claim is procedurally defaulted
because he raised it only for the first time in his second motion for relief from
judgment and the trial court relied on M.C.R. 6.502(G)(1) to deny petitioner’s
claim. Under M.C.R. 6.502(G)(1), a criminal defendant in Michigan can typically
file only one motion for relief from judgment with regard to a criminal conviction.
See Banks v. Jackson, 149 F.App’x 414, 418 (6th Cir. 2005); Mohn v. Bock, 208
F. Supp. 2d 796, 801 (E.D. Mich. 2002); Hudson v. Martin, 68 F. Supp. 2d 798,
800 (E.D. Mich. 1999)(citing to People v. Ambrose, 459 Mich. 884; 587 N.W.2d
282 (1998)). However, M.C.R. 6.502(G)(2) states that a defendant may file a
second or subsequent motion based on a retroactive change in law that
occurred after the first motion for relief from judgment or a claim of new evidence
that was not discovered before the first such motion. Banks, 149 F.App’x at 418;
Mohn, 208 F. Supp. 2d at 801; Hudson, 68 F. Supp. 2d at 800-01.
Respondent did not raise a procedural default defense in his initial answer
to the petition for a writ of habeas corpus that was filed on December 16, 2013.
Respondent clearly waived this defense by stating that “[t]he State is not arguing
that any of Maslonka’s habeas claims are barred by procedural default,” thereby
waiving a procedural default defense. (Response Brief, p.5). Respondent raised
the procedural default defense only for the first time in the supplemental answer
filed on June 16, 2016.

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Procedural default is an affirmative defense that must be raised by the
state at the first possible opportunity, or it will be considered waived. Trest v.
Cain, 522 U.S. 87, 89 (1997)(holding that state’s failure to raise procedural
default normally constitutes waiver of the default). By failing to argue that
petitioner’s claim was procedurally defaulted in the initial answer, respondent
has waived any defense that the claim is procedurally defaulted. See Williams v.
Birkett, 697 F. Supp. 2d 716, 722 (E.D. Mich. 2010); vacated on other grds, 670
F.3d 729 (6th Cir. 2012); on remand, 895 F. Supp. 2d 864 (E.D. Mich. 2012);
Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 828 (E.D. Mich. 2004); modified on
other grds, 340 F. Supp. 2d 773 (E.D. Mich. 2004); see also Miller v. Stovall, 641
F. Supp. 2d 657, 665 (E.D. Mich.2009)(State, by failing to argue harmless error
defense in its response to federal habeas corpus petition, waived issue);
Dickens v. Jones, 203 F. Supp. 2d 354, 361 (E.D. Mich. 2002)(state waived
affirmative defenses that habeas petitioner’s federal habeas claims were
noncognizable and waived because of petitioner’s alleged misrepresentation and
failure to object, where state failed to assert affirmative defenses in its initial
answer to the habeas petition); Benoit v. Bock, 237 F. Supp. 2d 804, 807 (E.D.
Mich. 2003) (Respondent’s failure to raise issue of procedural default constituted
implicit waiver of that affirmative defense to state prisoner’s federal habeas
petition). Respondent’s failure to argue in his initial answer that petitioner’s
claim was procedurally defaulted waives this procedural defense.

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Before ruling on the merits of petitioner’s underlying claim, this Court
notes that the Macomb County Circuit Court, the last court to issue a decision on
petitioner’s claim, never addressed the merits of this claim. When a state court
fails to adjudicate a habeas petitioner’s claim on the merits, federal habeas
review is not subject to the deferential standard contained in § 2254(d) and a
federal court is required to review that claim de novo. See Cone v. Bell, 556 U.S.
449, 472 (2009); Wiggins v. Smith, 539 U.S. 510, 534 (2003); see also
McKenzie v. Smith, 326 F.3d 721, 726 (6th Cir. 2003). In the present case, the
Macomb County Circuit Court declined to address the merits of petitioner’s claim
that he raised in his second post-conviction motion. Therefore, “there are simply
no results, let alone reasoning, to which this Court can defer. Without such
results or reasoning, any attempt to determine whether the state court decision
‘was contrary to, or involved an unreasonable application of clearly established
Federal law,’ 28 U.S.C. § 2254(d)(1), would be futile.” McKenzie, 326 F.3d at
727; see also Maples v. Stegall, 340 F.3d 433, 437 (6th Cir. 2003)(Michigan
courts’ failure to consider the petitioner’s ineffective assistance of counsel claims
rendered the AEDPA’s deferential standard of review inapplicable. Thus, the
Sixth Circuit would review petitioner’s claims under a de novo standard). This
Court cannot apply the deferential standard of review contained in the AEDPA,
but must review de novo petitioner’s claim.

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Petitioner initially contends that he was denied the assistance of counsel
at a critical stage of the proceedings against him when his trial counsel was
absent during the entire pendency of his pre-plea cooperation meetings and
assistance with the government.
The U.S. Supreme Court has clearly established that the complete denial
of counsel during a critical stage of a judicial proceeding mandates a
presumption of prejudice. Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000);
Penson v. Ohio, 488 U.S. 75, 88 (1988); United States v. Cronic, 466 U.S. 648,
659 (1984). The existence of certain structural defects in a trial, such as the
deprivation of the right to counsel, requires automatic reversal of the conviction
because it infects the entire trial process. Brecht v. Abrahamson, 507 U.S. 619,
629-30 (1993). The U.S. Supreme Court has routinely found constitutional error
without any specific showing of prejudice to a defendant when counsel is either
totally absent, or prevented from assisting the accused during a critical stage of
the proceedings. Cronic, 466 U.S. at 659, n.25; United States v. Minsky, 963
F.2d 870, 874 (6th Cir. 1992).
“The constitutional guarantee applies to pretrial critical stages that are part
of the whole course of a criminal proceeding, a proceeding in which defendants
cannot be presumed to make critical decisions without counsel’s advice.” Lafler
v. Cooper, 132 S. Ct. 1376, 1385 (2012). The Sixth Circuit has presumed that a
criminal defendant’s pre-trial cooperation period is a critical stage of the

14

proceedings, at least prior to the entry of a written cooperation agreement.
Wingo v. United States, 341 F.App’x 132, 134 (6th Cir. 2009)(pre-trial
cooperation period assumed to be critical prior to entry of a Kastigar agreement).
A federal court can “consider lower court decisions to the extent they shed light
on the analysis of Supreme Court holdings to determine whether a legal principle
had been clearly established.” Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir.
2013). Moreover, “[i]f the rule in question is one which of necessity requires a
case-by-case examination of the evidence, then we can tolerate a number of
specific applications without saying that those applications themselves create a
new rule… . Where the beginning point is a rule of this general application, a rule
designed for the specific purpose of evaluating a myriad of factual contexts, it
will be the infrequent case that yields a result so novel that it forges a new rule,
one not dictated by precedent.” Williams v. Taylor, 529 U.S. at 382 (quoting
Wright v. West, 505 U.S. 277, 308-309 (1992)).
Petitioner was constructively denied the assistance of counsel because
counsel was absent during petitioner’s meetings with the DEA, which were
contingent on receiving the more favorable plea bargain offered by the
prosecution. Petitioner was denied counsel during the critical stages of
implementing the cooperation agreement. “[A]n attorney’s assistance is critical
to the cooperation process in a number of respects, including, but not limited to,
facilitating communication between the defendant and the government, attending

15

proffer sessions, ascertaining the government’s expectations and whether the
defendant is satisfying them, communicating the client’s limitations to the
government, and establishing a record of attempts to cooperate.” United States
v. Leonti, 326 F.3d 1111, 1119 (9th Cir. 2003). Counsel’s physical absence at
every stage of petitioner’s cooperation “certainly constitutes denial of counsel.”
Peters v. Chandler, 292 F.App’x 453, 465 (6th Cir. 2008)(citing Hamilton v.
Alabama, 368 U.S. 52, 55 (1961)). Lack of appearance at these meetings is not
disputed by respondent.
Compounding the error is the fact that petitioner’s trial counsel never met
with petitioner before or after his meetings with the DEA, in order to offer
petitioner advice or debrief him on the nature of the discussions between the
DEA agents and himself.
ABA Standards provide:
Defense counsel should seek to establish a relationship of trust and
confidence with the accused and should discuss the objectives of the
representation and whether defense counsel will continue to represent
the accused if there is an appeal. Defense counsel should explain the
necessity of full disclosure of all facts known to the client for an
effective defense, and defense counsel should explain the extent to
which counsel’s obligation of confidentiality makes privileged the
accused’s disclosures.
To ensure the privacy essential for confidential communication
between defense counsel and client, adequate facilities should be
available for private discussions between counsel and accused.
1 ABA Standard for Criminal Justice 1(a) & (b).
The United States Supreme Court applied a standard of reasonableness
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when ascertaining whether counsel provided adequate representation, as
follows:
“The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms. [The Supreme
Court has long] recognized that [p]revailing norms of practice as
reflected in American Bar Association standards and the like ... are
guides to determining what is reasonable....” Padilla v. Kentucky, 559
U.S. 356, 366–67, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (internal
citations and quotations omitted). The same is equally true of an
agent’s obligations to his principal under the law of agency. See e.g.,
Maples v. Thomas, ––– U.S. ––––, 132 S.Ct. 912, 924, 181 L.Ed.2d
807 (2012). “Although they are only guides, and not inexorable
commands, these standards may be valuable measures of the
prevailing professional norms of effective representation....” Padilla v.
Kentucky, 559 U.S. 356, 366–67, 130 S.Ct. 1473, 176 L.Ed.2d 284
(2010)(internal citations and quotations omitted).
Gunner v. Welch, 749 F.3d 511, 516 (6th Cir. 2014).
A criminal defendant who is denied adequate consultation with his or her
attorney is constructively denied the assistance of counsel.
In Mitchell v. Mason, 325 F.3d 732, 741 (6th Cir.2003), the Sixth Circuit
held that there was a complete denial of counsel where the defendant’s attorney
spent approximately six minutes in the course of three separate meetings with
the defendant in the “bull pen” prior to the start of trial.
In United States v. Morris, 470 F.3d 596, 601-02 (6th Cir. 2006), the Sixth
Circuit held that a defendant facing state charges of firearms and drug
possession was constructively denied the right to counsel, when counsel was
assigned shortly before defendant attended the hearing at which he was offered
a choice of a plea bargain or the transfer of his case to federal prosecution with
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a potential of a higher sentence. The Sixth Circuit observed that counsel did not
meet with defendant until the day of the hearing, when they conversed for a few
minutes in the “bull pen” and counsel was forced to review his client’s options in
a crowded and noisy room with no privacy. Id. The Sixth Circuit also indicated
that the fee system for court-appointed counsel, whereby counsel was paid a
$40.00 fee for appearing at the pre-preliminary hearing, but received no
additional fee if they requested a continuance for additional preparation,
provided “counsel an incentive to encourage the defendant to accept the state’s
plea offer immediately, and a disincentive to seek more time to investigate and
seriously weigh the merits of a defendant’s case.” Id., at 601, n. 4.
In Turner v. Bagley, 401 F.3d 718, 721, 723, 727 (6th Cir. 2005), the Sixth
Circuit granted petitioner a writ of habeas corpus on an ineffective assistance of
appellate counsel claim, based in part on the fact that petitioner had inadequate
consultation with one of his appellate attorneys. Id. at 721.
In Williams v. Birkett, 697 F. Supp. 2d at 726, this Court ruled that the
state circuit court’s practice of assigning counsel shortly before a probation
violation hearing amounted to a state impediment to effective assistance of
counsel. In reaching this conclusion, the Court noted that counsel admitted that
he was unaware of petitioner’s special educational needs and cognitive
problems, nor did he appear to know the precise nature of the probation violation
charges against petitioner. Counsel never raised any defense to the probation

18

violation charge, nor did he make any objection or offer any argument when the
trial court berated petitioner. Id. This Court also noted that counsel failed to
mention petitioner’s special educational needs and cognitive problems to attempt
to mitigate the sentence imposed. Id.
In this case, counsel’s physical absence at every stage of petitioner’s
cooperation constituted a complete denial of counsel. Furthermore, the record
reflects that counsel was unaware of the extent of petitioner’s cooperation and
made no mention of petitioner’s cooperation at the time of sentencing. Counsel
merely agreed with the assessment made on the record that things didn’t work
out, without reference to petitioner’s cooperation or lack of cooperation. No
appeal for leniency was given by counsel at the time of sentencing in connection
with petitioner’s cooperation and no details pertaining to the cooperation given
can be found anywhere on the record. The record merely reflects that counsel
parroted the information given to her by the DEA as to whether petitioner
cooperated, or failed to cooperate. This approach can be seen from the record
where counsel informed the trial court judge, “I’m going to be in touch with Mr.
Fox after the Grand Jury on the 7th,” and then counsel’s reporting to the trial
court that things didn’t work out, in response to the withdraw of the plea by the
prosecutor. [Doc 21-6]. Trial counsel appeared on the trial date without making
prior contact with the U.S. Attorney’s office, the prosecutor’s office or her client
and was totally unaware of the circumstance which resulted in the withdrawl of

19

the plea offer.
Because petitioner was deprived of the assistance of counsel at a critical
stage of the proceedings, automatic reversal of his conviction is required, without
any showing of prejudice.
Petitioner further contends that counsel was ineffective, and prejudice can
be shown, when the terms of the cooperation agreement were never placed in
writing, allowing for the offer to be withdrawn on a mere allegation of noncooperation, when counsel failed to obtain information from the DEA regarding
petitioner’s cooperation, failed to document the extent of petitioner’s cooperation,
and failed to appraise the court at sentencing of the extensive cooperation given
by petitioner.
To show that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test. First,
the defendant must demonstrate that, considering all of the circumstances,
counsel’s performance was so deficient that the attorney was not functioning as
the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong
presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, petitioner must overcome the
presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must

20

show that such performance prejudiced his defense. Id. To demonstrate
prejudice, the defendant must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
The Sixth Amendment right to counsel extends to the plea bargaining
process. Lafler v. Cooper, 132 S. Ct. at 1384; Missouri v. Frye, 132 S. Ct. 1399,
1406 (2012). Thus, a criminal defendant during plea negotiations is “entitled to
the effective assistance of competent counsel.” Lafler, 132 S. Ct. at 1384
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The Supreme
Court noted in Frye,
The reality is that plea bargains have become so central to the
administration of the criminal justice system that defense counsel have
responsibilities in the plea bargain process, responsibilities that must
be met to render the adequate assistance of counsel that the Sixth
Amendment requires in the criminal process at critical stages.
Because ours “is for the most part a system of pleas, not a system of
trials,” Lafler, post, at 1388, 132 S.Ct. 1376, it is insufficient simply to
point to the guarantee of a fair trial as a backstop that inoculates any
errors in the pretrial process.
566 U.S. at 143–44.
As the Court stated in Frye, the plea negotiation stage “is not some
adjunct to the criminal justice system, it is the criminal justice system.” 566 U.S.
at 144 (emphasis original). Ninety-seven percent of federal cases and
ninety-four percent of state cases, resolve in pleas. Frye, 566 U.S. at 143;
Lafler, 566 U.S. at 170. The Sixth Circuit recently stated, “[I]t is undisputed that

21

the plea negotiation process is adversarial by nature and the average defendant
is ill equipped to navigate the process on his own.” Turner v. United States, 848
F.3d 767, 773 (6th Cir. 2017) rehr’g granted en banc 2017 WL 1359475 (6th Cir.
Apr. 13, 2017). The Supreme Court declined to delineate the components
required of counsel during the plea negotiation process finding that “[t]he
alternative courses and tactics in negotiation are so individual that it may be
neither prudent nor practicable to try to elaborate or define detailed standards for
the proper discharge of defense counsel’s participation in the process.” Frye,
566 U.S. at 145. The Court by acknowledging that negotiations take many forms
and include many different factual scenarios, left it to the lower courts to
determine whether ineffective assistance exists during the plea negotiation stage
on a case by case basis.
Petitioner alleges that trial counsel was ineffective, and prejudice can be
shown, by counsel’s failure to place the agreement in writing, consult with
petitioner regarding the terms of the cooperation agreement, debrief petitioner as
to cooperation rendered in conjunction with the cooperation agreement, meet
with petitioner to prepare for the meetings with the DEA, meet with petitioner to
prepare petitioner to give grand jury testimony, and allocute on behalf of
petitioner at the time of sentencing to the extent of his cooperation.
The record reflects that the prosecutor placed the state’s “last best offer”
on the record, indicating that the intent was “to keep the offer open until the day

22

of trial.” (Doc. 21-5, Pg ID 1467). The trial court judge reiterated the agreement
as follows:
THE COURT: So the offer being made, which will be open through the
day of trial, is guilty to Count 1, dismiss habitual fourth, estimated
guidelines 81 to 135, cooperation will have been extended and
complied with prior to our April 14th trial date, is that -MS. ERWIN: Yes. It is scheduled for the 7th of April.
*****************************************************************************
THE COURT: So what you are saying is if there is cooperation on the
7th then the plea would be guilty to Count 1,dismiss habitual fourth?
MR. FOX : Correct.
[Doc. 21-5, Pg ID1467, 1468].
When petitioner requested to meet with counsel prior to April 7th, the trial
court judge directed counsel to meet with petitioner, prior to the grand jury and
indicated that she could petition the court for additional fees as follows:
THE DEFENDANT: Would it be possible --considering the high profile
case that we’ve had going on it is really hard to talk back there, and so
things get crossed up because you can’t really say everything back
there. I have to go back to jail with these people, and considering what
is going on that is sometimes not a good thing.
THE COURT: Well, obviously I didn’t participate in the decisions which
landed you back there to begin with.
THE DEFENDANT: Right, no.
THE COURT: Perhaps if Counsel has an opportunity, you’re asking
that she come and see you at the jail in private.
THE DEFENDANT: Right.
MS. ERWIN: In segregation? I hate to see him -- you don’t want to go
into segregation?
23

THE COURT: Not him in segregation, but my understanding is that if
you come see him at the jail you have an opportunity to talk to him with
a few less people around.
MS. ERWIN: Yes, I can do that.
THE COURT: Okay.
MS. ERWIN: And will do that.
****************************************************************************
THE COURT: And I do agree with your client that sometimes it is
difficult to do that in the lockup in the courthouse, but you also have
the opportunity to request any additional fees, but I would prefer that
you make sure that you’re both on the same page.
[Doc. 21-5, Pg ID 1469].
The pre-trial hearing defined the terms of cooperation expected from
petitioner and the record clearly indicates that the only additional term that
existed pertained to petitioner’s testimony on April 7th before the grand jury. At
the pre-trial hearing, which defined the terms of the cooperation agreement,
petitioner asked the court if he could meet with counsel privately prior to
appearing before the grand jury. The court informed counsel that additional
funds could be requested, instructing counsel to meet with petitioner ahead of
the grand jury, to “make sure you are both on the same page.” Counsel agreed
to do so. [Id.].
The grand jury was to meet on April 7, 2009. Counsel failed to visit
petitioner at the jail and was absent when petitioner met with the federal
prosecutor to review his testimony. Petitioner contends that the federal

24

prosecutor then asked him if DEA agents present could ask a couple of
questions. He further contends that it was then that the agents sought
information about several individuals unrelated to petitioner’s grand jury
testimony or his cooperation to date, informing petitioner that if he provided the
additional information, they would seek additional consideration from the
prosecutor. Petitioner responded by informing the agents that the prosecutor
had already indicated on the record that the deal on the table was the best he
was going to get. When petitioner would not expand the scope of the
questioning, petitioner claims that the DEA agents escorted him back to his cell,
telling him that the grand jury would not meet, and his testimony was no longer
needed.
Petitioner is entitled to habeas relief, because he has established that trial
counsel was ineffective by her absence during critical stages of the proceedings
which were contingent upon him getting the plea agreement offered in exchange
for his cooperation and because petitioner was prejudiced by counsel’s
mistakes.
Trial counsel was ineffective for failing to inquire into the nature of
petitioner’s cooperation, nor did she attempt to secure a written or oral
cooperation agreement in order to define the scope of that cooperation. Leonti,
326 F.3d at 1121 (counsel ineffective for making no attempt to define scope or
method of cooperation).

25

Counsel also failed to mitigate her physical absences by debriefing
petitioner about his cooperation or seeking the reports of any of his sessions, in
order to apprise herself of the status of his cooperation efforts. Id. (counsel
ineffective for failing to appear at debriefings or discuss them with client).
Not only did counsel fail to advise her client during the critical stages
during the implementation of a cooperation agreement, by defining and placing
the terms into a written agreement and being present to vouch for petitioner’s
compliance, counsel further failed to advise her client before the calling of the
grand jury, and failed to be present at the time that the federal prosecutor met
with petitioner to go over petitioner’s testimony. At this point, the decision was
made not to use petitioner’s testimony before the grand jury. At this critical
stage, the prosecutor withdrew the plea offer claiming that petitioner failed to
comply with the cooperation agreement.
Both the trial court judge and petitioner were aware that petitioner’s
presence on April 7th to possibly provide grand jury testimony was pivotal in
obtaining the plea offered by the prosecutor at the last pre-trial conference. [Doc.
9-1, Pg. ID 753]. Both the trial court judge and Agent Robert Ziskie stressed the
need of a defendant and counsel to be “on the same page” prior to the giving of
grand jury testimony. [Doc. 21-5, Pg ID 1469; Doc. 46, Pg ID 2584]. The trial
court judge at the pre-trial hearing directed trial counsel to petition for additional
fees and meet with petitioner at the jail to prepare for the grand jury testimony.

26

Just as trial counsel was totally unaware of all cooperation rendered by
petitioner up to the grand jury hearing, trial counsel was also totally unaware of
the grand jury process or her role of acting as standby counsel to assist her
client. [Doc. 45, Pg ID 2354, 2362]. Trial counsel did not prepare petitioner to
give testimony before the grand jury, as instructed by the trial court judge and
merely told him to cooperate, [Id., Pg ID 2362], nor did she appear as standby
counsel to vouch that petitioner complied, or rehabilitate petitioner, if necessary,
to obtain the plea offer.
Trial counsel’s willful ignorance of petitioner’s cooperation, and her
inability to participate as standby counsel, left her unable to rebut the
prosecutor’s assertion on the trial date that petitioner had been uncooperative
with law enforcement and therefore, was not entitled to the plea offer as
articulated on the record at the last pre-trial conference.
It is clear from the record that petitioner cooperated at each meeting with
the DEA, as indicated at the last pretrial hearing. The absence of counsel, when
the grand jury was to be called, created an opportunity to withdraw the plea
agreement on a mere allegation by the prosecutor that petitioner had not
cooperated. Respondent does not deny that the prosecutor chose not to use
petitioner’s testimony before the grand jury. Choosing not to use petitioner’s
testimony prevented petitioner from complying with the last contingency of the
plea agreement, if that was a requirement for obtaining the more favored plea

27

offer. Had trial counsel been present, she could have advocated on behalf of
her client as to his compliance or rehabilitate her client if necessary. The record
clearly indicates that if there was cooperation on April 7th, the prosecutor was
prepared to accept the plea outlined at the pretrial hearing.
On the trial date, the prosecutor withdrew the plea offer based on the
representations made by the U.S. Attorney. Trial Counsel reported the
determination made by the U.S. Attorney, as reported by the prosecutor, to the
trial court judge.
Furthermore, trial counsel did not allocute on behalf of her client at
sentencing and never indicated to the court the extensive cooperation given by
petitioner, resulting in the trial court judge informing trial counsel “he gets
nothing” for his cooperation. [Doc. 46, Pg ID 2473-2474]. Trial counsel merely
indicated to the trial court that the plea agreement was based on his cooperation
with the DEA. Trial counsel was totally unaware of the terms of the cooperation
agreement between her client and the DEA, having never discussed the terms
with the DEA, or her client, never seeking to obtain and reduce the terms of the
cooperation agreement to writing, never debriefing her client, never meeting with
her client as instructed by the trial court to prepare for the giving of grand jury
testimony, and never consulting with her client or attempting to rehabilitate her
client prior to the withdrawal of the plea agreement on the day of trial.
Trial counsel also failed to move the sentencing court for a downward

28

departure from the sentencing guidelines range based on the value of
petitioner’s proffered information. Trial counsel never attempted to argue that
the sentencing court exhibit leniency in light of petitioner’s cooperation, as
evidenced by the extensive information provided within the DEA’s Report of
Investigation. [Doc. 9-1, Pg. ID 796-801]. “In short, [trial counsel] never did
anything to make it more likely that [petitioner] would in fact be able to provide
substantial assistance[.]” Leonti, 326 F.3d at 1121, or advocate on behalf of her
client as to the level of her client’s cooperation, which was unknown to trial
counsel. This court directly questioned trial counsel as to when petitioner “hit the
wall” in his cooperation. Trial counsel could not provide any specifics as to an
impediment or whether petitioner fulfilled the terms of the cooperation
agreement.
THE COURT: Can I repeat the question? The question is, if he
thought that he had fulfilled the contract, how were you to know
whether to advise him, to give him more or not to give him more? In
other words, the scope of the contract.
THE WITNESS: I always encouraged him to work with them to the
fullest extent of his ability.
*******************************************************************************
THE COURT: But you have testified several times that all you could
say to Mr. Fox is that he started out good and stopped. But you
couldn’t say to Mr. Fox that he fulfilled the contract.
THE WITNESS: No, I couldn’t. I couldn’t say that, no, and I didn’t. I
just know that the DEA agents said he started out helping them and
then it stopped.

29

[Doc. 45, Pg ID 2363-2364].
The record clearly indicates that counsel was absent during the plea
negotiation process. It also shows that trial counsel did not advocate on behalf
of her client, failing to meet the minimum standards of the effective assistance of
counsel. Petitioner pleaded to an offer which was originally made following the
arraignment in exchange for his trial rights. The prosecutor testified, as follows,
that such an offer is customarily made to avoid trial and was not the result of any
negotiations with trial counsel.
A. Yes. Exactly as I normally would, the week before, I reviewed his
file. And, again, obviously there is a lot of specifics from this nine
years ago I don’t recall. But to the best of my recollection I would have
reviewed his file the week before his arraignment. Within that, I would
have reviewed his criminal history, the actual facts of the case. If there
was a victim where I particularly cared about their position or was
concerned how they would feel about our resolving the case, I would
contact them. And then I normally notate within the file itself, a manila
folder with all the documents inside, I normally notate what was going
to be my initial offer at the time of arraignment before meeting with
defense counsel or anyone else involved in the case.
Q. And in this specific case, do your remember what your initial offer
was?
A. I do. The initial offer was to reduce the habitual notice from a
habitual fourth offender status to habitual third. No reduction in the
charge itself. He would have to plead as charged otherwise.
Q. And just so we are clear, this is before you’ve really met anyone
or handled the case in court, is that right?
A. Yes.
[Doc. 46, Pg. ID 2488].

30

Petitioner was prejudiced by counsel’s absence when the prosecutor
withdrew the plea, citing lack of cooperation at the time petitioner was to testify
before the grand jury on April 7th. Petitioner was also prejudiced by trial
counsel’s deficient performance when she failed to ascertain the terms of the
plea agreement, reduce the terms to writing, meet, discuss, debrief, and
rehabilitate her client in connection with the grand jury proceedings. The record
clearly reflects trial counsel’s absence or deficient representation throughout the
plea negotiation process and at sentencing resulted in petitioner accepting the
initial plea offered by the prosecutor to a habitual third, no reduction in the
charge, in exchange for waiving his trial rights, which was offered before
petitioner had any contact with trial counsel.
The question becomes what the appropriate habeas remedy would be in
this case. A federal habeas court has broad discretion in conditioning a
judgment granting habeas relief. Hilton v. Braunskill, 481 U.S. 770, 775 (1987).
28 U.S.C. § 2243 authorizes federal courts to dispose of habeas corpus matters
“as law and justice require.” Cases involving deprivations of the Sixth
Amendment right to the assistance of counsel are subject to the general rule that
remedies should be tailored to the injury suffered from the constitutional
violation. United States v. Morrison, 449 U.S. 361, 364 (1981).
The proper remedy in this case is to issue a writ of habeas corpus
conditioned upon the state prosecutor reoffering the original plea agreement.

31

Lafler, 132 S. Ct. at 1391.2
Because this Court’s conclusion that petitioner is entitled to habeas relief
on his assistance of counsel claim during the pre-plea cooperation period and at
sentencing is dispositive of the petition, the Court considers it unnecessary to
review petitioner’s other claims and declines to do so. See Satterlee v.
Wolfenbarger, 374 F. Supp. 2d 562, 567 (E.D. Mich. 2005).
IV. ORDER
IT IS HEREBY ORDERED THAT PETITIONER’S APPLICATION FOR A
WRIT OF HABEAS CORPUS IS CONDITIONALLY GRANTED. UNLESS THE
STATE TAKES ACTION TO RE-OFFER THE MORE FAVORABLE PLEA
AGREEMENT WITHIN NINETY (90) DAYS OF THE DATE OF THIS OPINION,
PETITIONER MAY APPLY FOR A WRIT ORDERING RESPONDENT TO
RELEASE HIM FROM CUSTODY FORTHWITH.

s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
SENIOR U.S. DISTRICT JUDGE
Dated: June 21, 2017

2

Petitioner also alleges that his three different appellate attorneys were
ineffective for failing to raise this claim on his direct appeal. In light of the fact
that this Court is granting petitioner habeas relief on his assistance of trial
counsel claim, petitioner’s ineffective assistance of appellate counsel claim is now
moot. Couch v. Booker, 650 F. Supp. 2d 683, 696 (E.D. Mich. 2009), aff’d, 632
F.3d 241 (6th Cir. 2011).
32