Satterlee v. Wolfenbarger

• Decision Date: 23 June 2005
• Docket Number: No. CIV. 03-71682-DT.,CIV. 03-71682-DT.
• Citation: 374 F.Supp.2d 562
• Parties: Wynn SATTERLEE, Petitioner, v. Hugh WOLFENBARGER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

374 F.Supp.2d 562

Wynn SATTERLEE, Petitioner, v. Hugh WOLFENBARGER, Respondent.

No. CIV. 03-71682-DT.

United States District Court, E.D. Michigan, Southern Division.

June 23, 2005.

James S. Lawrence, Royal Oak, MI, for Petitioner.

Brenda E. Turner and Janet Van Cleve, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS¹

TARNOW, District Judge.

Wynn Satterlee, ("petitioner"), presently confined at the Macomb Correctional Facility in New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction on one count of conspiracy to deliver over 650 grams of cocaine. For the reasons stated below, petitioner's application for writ of habeas corpus is CONDITIONALLY GRANTED.

I. Background

Petitioner was convicted following a jury trial in the Ingham County Circuit Court and was sentenced to 20 to 30 years in prison.

On April 15, 2005, this Court granted petitioner an evidentiary hearing on his ineffective assistance of counsel claims. This Court further found at the time, for reasons stated in greater detail in its opinion and order, that petitioner's claims were not procedurally defaulted.²

In his first and second claims, petitioner alleged that his trial counsel was ineffective for failing to adequately communicate a plea offer that had been made to him by the prosecutor prior to trial. As part of his eighth claim, petitioner contends that this same counsel was ineffective for not raising his own ineffectiveness at trial as a claim on petitioner's direct appeal.

An evidentiary hearing was conducted on June 1, 2005. The first witness to testify was petitioner's trial and appellate counsel, David Dodge. Mr. Dodge testified that petitioner had been charged with conspiracy to deliver 650 grams or more of cocaine. Dodge indicated that the penalties for this offense were either twenty to thirty years in prison or mandatory life in prison without parole. Dodge indicated that his office was retained by petitioner on May 28, 1998. Petitioner's first attorney, Thomas Bengston, remained on the case as a consultant to the defense.

Dodge testified that when he was first retained by petitioner, the prosecution had made a plea offer with a sentence agreement of twelve to twenty years. Dodge admitted that he was aware that shortly after his arrest, petitioner had made a statement to police officials in Ingham County, in which he detailed his involvement in cocaine trafficking. Dodge knew that petitioner cooperated with police authorities so that he could obtain pretrial release on bond. Dodge acknowledged that one purpose of a defendant's proffer to the police concerning his or her involvement in drug trafficking activities would be to obtain a plea bargain from the prosecutors. Dodge had no recollection of petitioner and him meeting with the prosecutor and law enforcement officials for proffer discussions on November 10, 1998, the date of a pre-trial conference.

Dodge testified further that he engaged in discussions with Assistant Prosecutor John Cipriani concerning a plea. Dodge testified that petitioner had authorized him to accept a sentence agreement of no greater than one to twenty years.

Dodge identified Plaintiff's Exhibit 3 as a letter that he sent to petitioner on November 30, 1998. In this letter, Dodge informed petitioner that the prosecutor's office was offering seven to twenty years without any cooperation from petitioner, and was offering a resolution of three to seven years if petitioner agreed to cooperate. Dodge was unsure whether this letter had been sent by mail to petitioner or transmitted by fax machine, or both. Dodge was unsure whether he had any conversations with petitioner between November 30, 1998 and the first day of trial, December 7, 1998.

Mr. Dodge was asked by petitioner's current counsel whether Assistant Prosecutor John Cipriani ever made a plea offer regarding a six to twenty year sentence. Dodge replied that at one point, Cipriani's offer fell below a minimum seven year sentence, but that this was dependent upon petitioner's full and complete cooperation. However, Dodge testified further that such a deal was never consummated, because he did not have any authority from petitioner to negotiate a sentence bargain greater than one to twenty years.

Dodge did not recall any discussions on the morning of trial concerning any plea offers, claiming he could not remember whether any plea offer even remained open on the day of trial. Upon further questioning, Dodge conceded that the prosecution had a strong case against petitioner. Dodge acknowledged that in such cases, plea negotiations are important and should take place. Dodge also testified that although there was an agreement between himself and Mr. Cipriani that petitioner's proffer statement could not be used as direct evidence against him if he went to trial, the proffer statement could have been used to impeach petitioner's credibility had he chosen to testify at trial.

Dodge testified that the fee arrangement between himself and petitioner called for petitioner having to pay higher fees if the case went to trial. Dodge explained that the initial retainer fee was $ 25,000.00, with an additional fee of $ 25,000.00 if petitioner went to trial.

Dodge further testified that he was retained by petitioner's family immediately after sentencing to represent petitioner on appeal. Dodge testified that he received $ 5,000.00 for the appeal. Although Dodge testified that he had handled other appeals from criminal cases where he had been trial counsel, he acknowledged that he never raised an ineffective assistance of trial counsel claim against himself.³

On cross-examination, Dodge testified that he did not recall whether a plea offer had been made on the day of trial, but insisted that he would have communicated such an offer to petitioner.

John Cipriani testified that he was the assistant prosecutor assigned to petitioner's case. Cipriani testified that petitioner had been charged with delivery or possession with intent to deliver over 650 grams of a controlled substance. The penalty for this crime was either twenty to thirty years or life imprisonment.

Cipriani acknowledged that after petitioner was extradited from Nevada to Michigan to face the charges, petitioner was given an opportunity by law enforcement officials to proffer a statement, in which petitioner would provide information concerning his drug dealing activities. Cipriani related that he and the police would make a plea offer based on the nature of the information proffered by a defendant. Cipriani indicated further that if a defendant wanted to continue to cooperate, he or she could potentially obtain a more advantageous plea offer. Cipriani testified that petitioner initially made a four page statement on February 12, 1998 to the police, in which he detailed his knowledge and participation in the distribution of cocaine. Cipriani was unaware of any occasion in which petitioner refused to cooperate with authorities.

Cipriani testified that the first plea offer made to petitioner was for him to receive a sentence agreement of twelve to twenty years. Eventually, the plea offer improved from twelve to twenty years to seven to twenty years. Prior to trial, there was a firm offer of seven to twenty years. Cipriani denied making any plea offers in the three to seven years range.

Finally, on the day of trial, Cipriani offered petitioner six to twenty years in prison in exchange for his plea of guilty. Cipriani testified that the offer of six to twenty years did not require any further cooperation from petitioner. Cipriani testified that he communicated this offer to petitioner's counsel, David Dodge. He did not communicate the plea offer directly to petitioner. Although he observed discussion between Dodge and petitioner, Cipriani conceded that he had no personal knowledge about whether Dodge communicated this offer to petitioner. Cipriani did not hear petitioner inform Dodge that he refused to accept this plea offer. Instead, Dodge returned to Cipriani "and said we're going to have a trial or that's not good enough, or something to that effect."

Petitioner testified that after his arrest on this charge, he made a four page statement to the police in which he described his involvement in drug trafficking. Petitioner indicated that the purpose of his proffer was to cooperate in order to obtain some reduction in the charges. Petitioner was aware that he was facing life in prison on this charge.

Petitioner's first attorney, Thomas Bengston, informed him that the prosecutor's initial plea offer was twelve to twenty years. Petitioner rejected the offer as being too high, but he continued to cooperate with the police. Petitioner met in Mr. Bengston's office with narcotics officers on four or five dates, where he provided the officers with information concerning narcotics trafficking. On one of these occasions, agents from the Federal Bureau of Investigation also questioned him. Petitioner testified that he never refused to cooperate.

Petitioner indicated that he contacted David Dodge in April of 1998 and retained him as counsel. Petitioner testified that he hired Dodge because of his reputation in obtaining advantageous plea bargains for his clients. After Dodge was retained, petitioner testified that he met on two more occasions with the police to provide them with information.

Petitioner testified that several other plea offers were related to him by Dodge. Dodge and Bengston advised petitioner of an offer calling for an eight year minimum sentence, which petitioner rejected as being too high. Subsequently, petitioner met with Dodge, Cipriani, and several police officers following his pre-trial hearing on November 10, 1998. At this meeting, petitioner again gave information to the...