Maslonka v. Hoffner, Sixth Circuit Court of Appeals, Filed August 14, 2018: Absent Counsel is Not Ineffective Counsel

When you are charged with a crime, in state or federal court, you have the right to counsel – even if you can’t afford counsel, the court is required to provide counsel for you.

It’s not enough to just provide an attorney – every defendant has the right to effective assistance of counsel, right?

That’s what most people believe, and that’s what the US Supreme Court has said. But, the Sixth Circuit’s decision in Maslonka v. Hoffner illustrates the reality of our federal court system – prosecutors control the process, and both trial courts and appellate courts will bend the law to ensure that prosecutors can continue to control the process…

Federal Cooperation for Leniency in State Court Proceedings

Maslonka was charged with armed robbery in Michigan state court as a fourth-habitual-offender – a status that significantly increased his potential sentence.

Maslonka then agreed to cooperate with the DEA in a separate federalinvestigation – his state court prosecutor agreed on the record that he would dismissthe fourth-habitual-offender charge in exchange for Maslonka’s “very best of cooperation.”

Despite this offer that was made on the record, the state court prosecutor refused to enter into a detailed sentencing agreement with Maslonka, and later revoked his offer, requiring Maslonka to plead guilty to a third-habitual-offender charge instead of completely dismissing the charge.

Absent Counsel is Not Ineffective Counsel?

Maslonka eventually filed a federal habeas petition after the state courts denied relief, arguing that he received ineffective assistance of counsel – mainly, because his defense attorney wasn’t there at any critical stage of the plea negotiations:

• DEA agents met with Maslonka at the jail immediately after his arrest and before counsel had even been appointed to represent him;
• Even after Maslonka was appointed counsel, federal authorities continued to meet with him at the jail without giving Maslonka or his attorney notice that they were coming;
• Maslonka’s attorney was not present for any of his meetings with DEA agents or federal prosecutors; and
• Maslonka’s attorney did not show up for Maslonka’s required testimony before a grand jury – testimony that never happened because of a disagreement with federal agents that could have been avoided if he had the benefit of the advice of counsel.

Maslonka claimed that he was to give testimony about three particular drug traffickers, but, when he arrived at the grand jury proceedings, they wanted him to testify about his close friends and family which he refused.

Based on his refusal to testify about his close friends and family, they did not allow him to testify, and the state prosecutor withdrew his initial plea offer.

Because there was no detailed written agreement that laid out what his assistance should consist of, and no promises apart from the vague offer the state prosecutor made on the record and a “wink and a nod” made to the mostly-absent defense lawyer off the record, Maslonka had no way of proving what the agreement was, much less enforcing it.

You Do Not Have to Prove Strickland’s Prejudice Prong When There is a Complete Denial of Counsel… or Do You?

The Sixth Circuit acknowledged the US Supreme Court’s decision in Cronic where the Court held that a complete denial of counsel is constitutional error that does not require a showing of prejudice:

Although the Supreme Court said in Cronic that it “has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding,” 466 U.S. at 659 n.25, each of the cases the Supreme Court cited for this proposition involved a state statute’s or state actor’s denyingthe physical presence of counsel during a critical stage or otherwise placing limits on counsel’s representation of a criminal defendant.

The Sixth Circuit then takes the liberty of amendingthe Supreme Court’s holding in Cronic, announcing a “new rule,” based on the facts of the Cronic line of cases: it’s not a complete denial of counsel unless the state is responsible for the denial of counsel…

Because the government was not responsible for denying the participation of counsel – Maslonka’s counsel just chose not to show up – the Sixth Circuit holds that Maslonka must prove prejudice under Strickland– requiring 1) ineffective assistance, and 2) prejudice.

The Sixth Circuit then holds that, although they presumeineffective assistance from the fact that Maslonka’s attorney was not present, Maslonka did not prove that the outcome would have been different if his attorney had been there and therefore he is not entitled to relief…