Opposition Brief — Wolfenbarger v. Satterlee, 127 S. Ct. 1832 (2007) (No. 06-977)

No. 06-977

IN THE SUPREME COURT OF THE UNIVED STATES

HUGH WOLFENBARGER. Warden.

Petitioner

-V-

WYNN SATTERLEE,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SIXTH CIRCUIT COURT OF APPEALS

JAMES STERLING LAWRENCE (P33664)

Attorney for Respondent Satterlee

828 W. Eleven Mile Road

Royal Oak, Mi 48067

(248) 399-6930

No. 06-977

IN THE SUPREME COURT OF THE UNITED STATES

HUGH WOLFENBARGER, Warden,

Petitioner

-v-

WYNN SATTERLEE,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SIXTH CIRCUIT COURT OF APPEALS

JAMES STERLING LAWRENCE (P33664)

Attorney for Respondent Satterlee

828 W. Eleven Mile Road

Royal Oak, MI 48067

(248) 399-6930

QUESTIONS PRESENTED

Respondent Wynn Satterlee filed a Petition for Habeas

Corpus in United States District Court claiming ineffective

assistance of counsel arising from counsel's peculiar actions,

failures to inform, and outright misinformation. The United

States District Court ordered Habeas Corpus relief. that

Michigan, within 60 days, extend an offer to Petitioner to

plead guilty to a lesser offense with a 6 to 20 year sentence.

The state failed to do that, leading to a District Court order

releasing Petitioner. The questions presented are:

QUESTION 1: WHETHER THE UNITED STATES

DISTRICT COURT HAS THE AUTHORITY TO ISSUE A

CONDITIONAL ORDER OF HABEAS CORPUS,

PROVIDING FOR ENHANCED REMEDY TO THE

PRISONER IF THE STATE FAILS TO OBEY THE

CONDITIONAL ORDER.

QUESTION 2: WHETHER THE REMEDY APPLIED BY

THE UNITED STATES DISTRICT COURT USURPS THE

AUTHORITY OF THE MICHIGAN PAROLE BOARD OR

IS OTHERWISE CONTRARY TO RESPECT OWED TO

THE STATE COURTS.

QUESTION _ 3: WHETHER THE RELEASE OF

RESPONDENT ON BOND WAS ITSELF IMPROPER. OR

MADE ANY OTHER RULINGS IMPROPER.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATUTE INVOLVED

STATEMENT OF THE CASE

STATEMENT OF PROCEEDINGS

STATEMENT OF FACTS

REASONS FOR DENYING THE WRIT

QUESTION |

QUESTION II

QUESTION II]

CONCLUSION

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INDEX OF AUTHORITIES

Cases

A.M. v. Butler, 360 F.3d 787, 802 (7th Cir. 2004)

Baker v. Adams County Ohio Valley School Board,

310 F.3d 927 (6th Cir. 2002)

Bell v. Cone, 535 U.S. 685; 122 S.Ct. 1843; 152 L.Ed.2d

514 (2002)

Carafas v. LaVallee, 391 U.S. 234 (1968)

Clinkscale v. Carter, 375 F.3d 430 (6th Cir.2004)

Edwards v. Carpenter, 529 U.S. 446; 120 S.Ct. 1587:

146 L.Ed.2d 518 (2000)

Evitts v. Lucey, 469 U.S. 387: 105 S.Ct. 830 (1985)

Grutter v. Bollinger, 247 F.3d 631 (6th Cir. 2001)

Hamby v. Neal, 368 F.3d 549 (6th Cir. 2004)

Hilton v. Braunskill, 107 S.Ct. 2113; 95 L.Ed.2d 724

(1987) 19, 21

Hodge v. Hurley, 426 F.3d 268 (6th Cir. 2005) 13, 16

Javitch v. First Union Securities, 315 F.3d 619

(6th Cir. 2003) 18

Kimmelman v. Morrison, 477 U.S. 365; 106 S.Ct.

2574 (1986) 14

Lorillard Tobacco Co v. Reilly, 533 U.S. 525; 121

S.Ct. 2404; 150 L.Ed.2d 532 (2001) 18

Mizell v. Attorney General, 586 F.2d 942 (2d Cir. 1978)

Steele v. Industrial Development Board, 301 F.3d

401 (6th Cir. 2002)

iV

Weingarten Nostat Inc. v. Service Merchandise Co Inc.,

396 F.3d 737 (6th Cir. 2005) 18

White v. White, 925 F.2d 287 (9th Cir., 1991) 15

Wilkinson v. Dotson, 544 U.S. 74; 125 S.Ct. 1242;

161 L.Ed.2d 253 (2005) 14, 15, 19

Constitutional Provisions

U.S. Const., Amend. VI

U.S. Const., Amend. XIV

Statutes

28 U.S.C. § 1254

28 U.S.C. § 2243

Rules

F.R.Civ.P. 62

F.R.Civ.P. 62(d)

Answer to Petition for Writ of Certiorari

No. 06-977

IN THE SUPREME COURT OF THE UNITED STATES

HUGH WOLFENBARGER, Warden,

Petitioner

-y-

WYNN SATTERLEE,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SLEXTH CIRCUIT COURT OF APPEALS

WYNN SATTERLEE, Respondent, by and through his

attorney, James S. Lawrence, moves this Court to deny a

Writ of Certiorari to review the ruling of the Sixth Circuit

Court of Appeals of June 30, 2006, affirming the grant of

Habeas Corpus by the United States District Court.

Answer to Petition for Writ of Certiorari

OPINIONS BELOW

These are found in Petitioner's Appendix.

STATEMENT OF JURISDIC PION.

This case began as a criminal prosecution in Ingham

County, Michigan, Circuit Court. The original judgment was

entered January 13, 1999. The United States District Court

issued a ruling granting Habeas Corpus relief on June 23,

2905. ‘The United States Court of Appeals for the Sixth

Circuit affirmed June 30, 2006. Respondent concedes that

this Court has jurisdiction over the Petition for Writ of

Certiorari pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides:

"In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed oi the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel

for his defence."

The Fourteenth Amendment to the United States

Constitution provides:

Answer to Petition for Writ of Certiorari 3

"No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life, liberty .

Or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws."

STATUTE INVOLVED

28 U.S.C. § 2243 provides, in part:

"The court shall summarily hear and

determine the facts, and dispose of the matter as

law and justice require."

STATEMENT OF THE CASE

Statement of Proceedings

Respondent Wynn Satterlee (Petitioner in United

States District Court) was charged with, and ultimately

over 650 grams of cocaine. Trial took place in the Ingham

County, Michigan Circuit Court before the Hon. William

Collette. On January 13, 1999, Judge Collette sentenced

Defendant to prison for 20 to 30 years, noting that Defendant

had no prior convictions.

Trial counsel David Dodge handled the appeal of right.

The Court of Appeals affirmed on March 28, 2000. The

Michigan Supreme Court denied leave to appeal on June 26,

2000. A Motion for Relief from Judgment was denied by the

4 Answer to Petition for Writ of Certiorari

Circuit Court on July 24, 2001. The Court of Appeals denied

leave to appeal November 4, 2002. The Michigan Supreme

Court denied leave to appeal April 29, 2003.

Respondent filed a Petition for Habeas Corpus with the

United States District Court, Eastern District of Michigan, on

April 30, 2003. An evidentiary hearing was held before the

Hon. Arthur Tarnow on June 1, 2005. Judge Tarnow granted

a Petition for Habeas Corpus on June 23, 2005. The ruling

included this language:

"IT IS HEREBY ORDERED THAT

PETITIONER’S APPLICATION FOR WRIT OF

HABEAS CORPUS IS CONDITIONALLY

GRANTED. UNLESS THE STATE TAKES

ACTION TO OFFER PETITIONER A PLEA

OFFER WITH A SENTENCE AGREEMENT OF

SIX TO TWENTY YEARS WITHIN SIXTY (60)

DAYS OF THE DATE OF THIS OPINION, HE

MAY APPLY FOR A WRIT ORDERING

RESPONDENT TO RELEASE HIM FROM

CUSTODY FORTHWITIEL."

Petitioner, Warden Wolfenbarger (Respondent in the

District Court), moved for reconsideration July 5, 2005, and

it was denied by order dated July 14, 2005. Sixty days from

July 14, 2005 was September 12, 2005. Petitioner did not

extend the offer to Respondent Satterlee. ‘The Motion to

Issue Unconditional Writ of Habeas Corpus was filed

September 23, 2005, 11 days after the State's time to make

the offer expired. This was granted by the United States

District Court on November 19, 2005.

Meanwhile, on July 8, 2005, the District Court held a

Answer to Petition for Writ of Certiorari ~

hearing and release Respondent (Petitioner in District Court)

on personal bond, under the supervision of Pretrial Services

of the United States District Court, pending the prosecutor's

appeal.

Petitioner Warden Wolfenbarger filed 2 timely appeals

which were consolidated, leading to a published opinion of

June 30, 2006, affirming the District Court.

Statement of Facts

Facts Elicited at Trial:

Randall Guile testified that he was arrested in Holt,

Michigan, for attempting to deliver 20 ounces of cocaine, and

possessing 2 more ounces of cocaine. A search of his home

located another 810 grams of cocaine. He made a plea

bargain for a lower sentence in exchange for testimony

against Respondent Wynn Satterlee. (T 1, 82-92).

Mr. Guile testified that in December 1995, he and

Respondent went to Florida and brought back 2 kilos of

cocaine to Michigan. (T 1, 49-51). He testified that he and

Respondent went to Florida again, where Respondent came

up with more cocaine. This was driven back to Michigan in

Guile's motor home, being driven by Robert Horstman and

D.W. Respondent told him that the cocaine had come from

Curt Liebetrau. (T 1, 53-62).

Facts Elicited at Evidentiary Hearing:

Mr. Dodge testified that he was authorized by

Respondent Satterlee to offer a deal of | to 20 years. (T 15).

Mr. Cipriani, the prosecutor, said he never heard any such

offer [although he would have rejected it if it had been

6 Answer to Petition for Writ of Certiorari

presented to him]. (T 79-80, 83, 89). Prosecutor Cipriani

says he was told by Mr. Dodge that Respondent would not

take any deal involving prison (T 79-80, 83), which both

attorney Dodge (I 15) and Respondent Satterlee (fT 110)

agreed was not Respondent's position.

Mr. Dodge declared authentic his letter dated

November 30, 1998, where he allegedly presented to

Respondent the offer of Mr. Cipriani of a sentence from 3 to

7 years. (1 19-20). Mr. Cipriani says he never made such an

offer. He testified that before trial, the best offer he made

was 7 to 20, and it was not until the day of trial that he went

below 7, by offering 6 to 20. (T 72-75).

In other words, Mr. Cipriani never heard of Respondent

Satterlee's offer, Mr. Satterlee never heard of Mr. Cipriani's

offer, and the November 30 letter, purportedly addressed to

Respondent on Timber Ridge Rd., purports to present to

Respondent Satterlee a supposed plea offer that Mr. Cipriani

never made.

Mr. Satterlee says he did not live at the Timber Ridge

address, that he moved earlier that year to Pole Road, and

that he notified attorney Dodge of the change of address. (‘T

98). This is confirmed in part by Exhibit 4, the letter from

attorney Bengston to attorney Dodge providing advice on

how to deal with Respondent's change of address. (T 16-17).

Mr. Satterlee (T 97-100) and his mother (T 111) each

confirm that the supposed November 30 letter never arrived.

Mr. Dodge conceded that he did not know if the letter had

been mailed or if it had been faxed, and that the FAX

designation on the letter suggests it might have been faxed.

({ 22-23, 63-64). Mr. Satterlee had no fax machine to

Answer to Petition for Writ of Certiorari 7

receive a fax. (T 109).

Mr. Dodge testified that between sending the

November 30 letter and the date of trial, he did not consult

with Respondent Satterlee at all about possible plea

bargaining. (T 23, 27).

Mr. Satterlee testified that he asked attorney Dodge

about the status of plea bargaining in a phone call on

December 4, the Friday before the December 7 trial date, and

Mr. Dodge informed him that all offers were off the table. (T

100).

Mr. Satterlee testified that he cooperated extensively

with the authorities, and his purpose in doing so was to get

the best deal possible. (T 91, 94-95, 101-102, 110). That he

cooperated is shown by the testimony of both Mr. Cipriani (T

70-71) and Mr. Dodge (T 11-12), and by Exhibit 1, which

showed he admitted guilt and named others who participated.

That his purpose in doing so was to get the best deal possible

is supported in part by the testimony of Mr. Dodge (T’ 12),

and fully supported by his own testimony. Confessing and

naming others involved in drug trafficking does not provide a

trial defense to the charges, and would in fact hinder

Respondent from testifying at his own trial (T 31).

Respondent testified that he proposed | to 20 as a

starting point for the defense negotiations (T 109-110), and

attorney Dodge agreed that Respondent authorized him to

make that offer. (T 15). That offer, if accepted by the

proseeutee, would involve Respondent going to prison. Mr.

Cipriani testified he was informed by attorney Dodge that

Respondent insisted only on deals that would not involve

prison. (T 79-80, 83).

8 Answer to Petition for Writ of Certiorari

Attorney Dodge did not inform Respondent of the 6 w

20 offer. (T 101). If Respondent had known of the 7 to 20

and 6 to 20 offers, which did not involve him publicly giving

testimony or working as an undercover agent, he clearly

would have accepted. (T 102).

The testimony showed that if the case went to trial,

rather than being resolved by plea, attorney Dodge would

personally receive an additional $25,000.00, making

$50,000.00 total. (T 34).

Attorney Dodge admitted that he did not advise

Respondent or his family of any possible conflict of interest

from his handling the appeal from his own representation,

and that he did not consider raising, or raise, an issue of

ineffective assistance of trial counsel against himself. (T 35-

38).

Margaret Satterlee testified that attorney Dodge

solicited the appeal, and he provided the family with no

information that there might be a possible conflict of interest.

(T 111-113).

Judge ‘Tarnow, after holding an evidentiary hearing, on

June 23, 2005 issued a ruling granting Habeas Corpus. He

found that Respondent, his mother, and prosecutor Cipriani

were all more credible than attorney Dodge, and made the

following findings of fact (Opinion 13-16):

This Court first finds that the petitioner has

established by clear and convincing evidence that

the prosecutor made a plea offer on the day of

trial to allow petitioner to plead guilty in

exchange for a sentence of six to twenty years.

Mr. Cipriani, the assistant prosecutor in this case,

Answer to Petition for Writ of Certiorari

acknowledged that such a plea offer was made,

and this fact has not been disputed by respondent.

Secondly, this Court finds that the plea offer

of six to twenty years was never communicated to

petitioner by his attorney David Dodge. In so

ruling, this Court 1s finding that petitioner's

testimony that no such offer was ever conveyed to

him prior to trial to be more credible than Mr.

Dodge’s testimony. Although Mr. Dodge claimed

that it would be his practice to communicate all

plea offers to a client, Mr. Dodge was unable to

recall whether a plea offer was made on the day of

trial or whether he discussed such an offer with

petitioner.

More importantly, in all aspects, this Court

finds petitioner’s testimony, the testimony of his

mother. and that of assistant prosecutor John

Cipriani, to be more credible than Mr. Dodge’s

testimony on a number of matters. It is the

province of the district court before which a

habeas corpus proceeding is taking place to make

credibility determinations. See Stidham v. Wingo,

482 F. 2d 817, 820 (6th Cir. 1973).

Mr. Dodge had difficulty remembering most

of the details of this case. This Court finds it hard

to believe that an attorney would be unable to

recall even the most basic details from a case in

which he received a fee in excess of $ 50,000.00.

In addition, although Mr. Dodge claimed that he

was only authorized by petitioner to accept a plea

offer of one to twenty years, Mr. Cipriani claimed

that he never heard petitioner offer to plead guilty

in exchange for a sentence of one to twenty years.

Further, petitioner and his mother both

testified that the letter from November 30, 1998

which contained a reference to the plea offer of

9

10 Answer to Petition for Writ of Certiorari

seven to twenty years, was never mailed or faxed

to them at any address. Dodge conceded that he

did not know if this letter had been mailed or sent

by fax machine to petitioner. Dodge also could

not recall having any discussions with petitioner

concerning any plea offers between the date that

he sent this letter on November 30, 1998 and the

irial date of December 7, 1998. This diminishes

the credibility of Dodge’s testimony that it would

be his practice to communicate all plea offers to

his clients. If this were the case, the Court

questions why Dodge would have made no

attempts to contact petitioner by telephone or

other means prior to trial to determine whether

petitioner was aware of the plea offer of seven to

twenty years and whether it would be desirable

for him to accept it. Finally, Dodge’s testimony

that any plea offers which went below a minimum

sentence of seven years were conditioned upon

petitioner providing additional cooperation to the

authorities was refuted by John Cipriani’s

testimony that the offer of six to twenty years was

not conditioned-upon petitioner providing any

additional assistance to the authorities.

Another factor which casts doubt on

Dodge’s credibility and enhances petitioner’s

credibility concerning whether the plea agreement

of six to twenty years was actually communicated

to petitioner is thé fee arrangement, which called

for Dodge to receive an additional $ 25,000.00 if

the case went to trial, as opposed if petitioner

pleaded guilty. The fge arrangement created a

disincentive for Dodge to seek a plea agreement,

further calling into question both his credibility at

the evidentiary hearing and the effectiveness of

his representation in this case. See e.g. Winkler v.

Answer to Petition for Writ of Certiorari

Keane, 7 F. 3d 304, 307-08 (2nd Cir.

1993)(contingency fee agreement, under which

defense counsel was to receive additional $

25,000 if defendant were acquitted or otherwise

not found guilty, created an actual conflict of

interest in murder prosecution. That is, defense

counsel had a disincentive to seek a _ plea

agreement, or to put forth mitigating defenses that

would result in a conviction of a lesser included

offense). :

Moreover, petitioner clearly established that

he sought to plead guilty from the time of his

arrest. He was not interested in going to trial.

Petitioner testified that he cooperated with law

enforcement officials from the start in order to

obtain the most advantageous plea agreement.

Petitioner, in fact, testified that he retained Dodge,

because of the attorney’s reputation in obtaining

favorable plea or sentencing agreements for his

clients.

Finally, petitioner received a sentence of

twenty to thirty years after trial. Clearly, the large

disparity between this sentence and a sentence of

six to twenty years supports a finding that there is

a reasonable probability that petitioner would

have accepted the plea offer that was made in this

case. Griffin, supra at 737. See also, United States

v. Blaylock, 20 F.3d 1458, at 1468 (9th

Cir.1994)."

REASONS FOR DENYING THE WRIT

11

QUESTION 1: WHETHER THE UNITED STATES

DISTRICT COURT HAS THE AUTHORITY TO ISSUE A

CONDITIONAL ORDER OF HABEAS CORPUS,

12 Answer to Petition for Writ of Certiorari

PROVIDING FOR ENHANCED REMEDY TO THE

PRISONER IF THE STATE FAILS TO OBEY THE

CONDITIONAL ORDER.

Respondent Satterlee filed a Petition for Ilabeas Corpus

in United States District Court challenging his conviction and

sentence. ' It was granted, and that was upheld on appeal.

At the outset, it must be noted that Petitioner (Warden

Wolfenbarger) in this petition challenges only the extent of

the remedy. He does not challenge the federal court finding

that attorney Dodge did not inform Respondent Satterlee

(defendant in state court) of plea offers extended by the

prosecutor, Mr. Cipriani, and did not inform Mr. Cipriani of

the plea offer extended by Respondent Satterlee. Petitioner

Warden does not challenge the federal court finding that

attorney Dodge had a $25,000 incentive to take actions which

guaranteed there would be no plea bargain and that the case

would go to trial. Petitioner Warden does not challenge the

federal court finding that attorney Dodge gave testimony it

found not to be credible based on testimony from state

prosecutor Cipriani, after holding an evidentiary hearing.

Petitioner also does not challenge the legal conclusion

' Petitioner, Warden Wolfenbarger, is simply incorrect when

he argued that Respondent challenged only the sentence.

(P.W.C. 8). Respondent was convicted at trial of conspiracy

to possess with intent to deliver over 650 grams of cocaine,

and 20 to 30 years was the lowest sentence available for that

offense. Respondent argued that he was wrongfully deprived

of an opportunity to accept a plea bargain to a lower charge

involving a 6 to 20 year offer.

Answer to Petition for Writ of Certiorari 13

reached by the United States District Court and the Sixth

Circuit Court of Appeals that these actions amounted to

ineffective assistance of counsel by attorney Dodge,

justifying Habeas Corpus relief.

In issuing its Opinion and Order Conditionally

Granting the Petition for Writ of Habeas Corpus, the District

Court stated:

"It is hereby ordered that petitioner’s

application for writ of habeas corpus is

conditionally granted. Unless the state takes

action to offer petitioner a plea offer with a

sentence agreement of six to twenty years within

sixty (60) days of the date of this opinion, he may

apply for a writ ordering respondent to release

him from custody forthwith."

A conditional writ of Habeas Corpus is completely

proper. In Hodge v. Hurley, 426 F.3d-268 (6th Cir. 2005),

the Sixth Circuit ordered:

“Accordingly, we REVERSE the decision

below and REMAND the case to the district court

with instructions that a conditional writ of habeas

corpus, giving the State of Ohio ninety days to

retry Hodge or release him from custody, be

GRANTED."

Similarly, in Clinkscale v. Carter, 375 F.3d 430 (6th

Cir. 2004), the Sixth Circuit ordered:

"For all the foregoing reasons, we

REVERSE the district court's judgment and

i4 Answer to Petition for Writ of Certiorari

GRANT a conditional writ of habeas corpus,

giving the State of Ohio ninety days in which to

retry Clinkscale or release him from. state

custody."

This principle was recognized in Wilkinson v. Dotson;

544 U.S. 74, 86; 125 S.Ct. 1242; 161 L.Ed.2d 253 (2005)

{concurrence of Justices Scalia and Thomas}:

"Conditional writs enable habeas courts to

give States time to replace an invalid judgment

with a valid one, and the consequence when they

fail to do so is always release."

Conditional writs of Habeas Corpus were affirmed by

the United States Supreme Court in Kimmelman v. Morrison,

477 U.S. 365; 106 S.Ct. 2574 (1986) and Evitts v. Lucey, 469

U.S. 387; 105 S.Ct. 830 (1985). In other cases, the United

States Supreme Court has overturned conditional writs, but

only on the merits, not on the basis that District Courts lack

the authority to impose that remedy. See, e.g., Bell v. Cone,

535 U.S. 685; 122 S.Ct. 1843; 152 L.Ed.2d 514 (2002);

Edwards v. Carpenter, 529 U.S. 446; 120 S.Ct. 1587; 146

L.Ed.2d 518 (2000).

That a federal court can issue a conditional writ is

therefore beyond question.

The grant of conditional Habeas Corpus instead of full

Habeas Corpus is a concession to the State, permitting them

to remedy their unconstitutional actions instead of just

releasing the unconstitutionally convicted petitioner. If the

conditional part of the Habeas Corpus order cannot be

enforced, then Habeas Corpus courts should stop issuing

Answer to Petition for Writ of Certiorari 15

conditional orders, and just issue final orders, not giving the

state the opportunity to cure. It is hard to believe that is what

the State would want, yet, that would necessarily be the result

if the conditional part of the Habeas Corpus order could not

be enforced.

This Court should deny Certiorari because the only

result of such a procedure would be a conventional ruling

upholding the well-established rule that a United States

District Court has the power and authority to issue a

conditional writ of Habeas Corpus with consequences

attendant on failure to comply.

QUESTION 2: WHETHER THE REMEDY APPLIED BY

THE UNITED STATES DISTRICT COURT USURPS THE

AUTHORITY OF THE MICHIGAN PAROLE BOARD OR

IS OTHERWISE CONTRARY TO RESPECT OWED TO

THE STATE COURTS.

If the District Court issues a conditional order, and the

State fails to comply, the District Court is not supposed to

ignore that violation. Instead, the District Court is supposed

to impose a remedy. That remedy can include release of the

prisoner. Wilkinson v. Dotson, supra.

The remedy, however, is not limited to release of the

prisoner, and can include overturning or expunging the

conviction. Carafas v. LaVallee, 391 U.S. 234 (1968); A.M.

v. Butler, 360 F.3d 787, 802 (7th Cir. 2004); White v. White,

925 F.2d 287 (9th Cir., 1991); Afizell v. Attorney General,

586 F.2d 942 (2d Cir. 1978).

Petitioner Warden argues that even though they

violated the terms of the conditional writ of Habeas Corpus,

16 Answer to Petition for Writ of Certiorari

the prisoner should get no more remedy than if the State had

complied with the terms of the conditional writ.

If this Court were-to issue such a ruling, then the power

of federal courts, and the rights of individuals depending on

those federal courts, would depend on the policies of officials

in the states. In many states, few conditional writs of Habeas

Corpus would ever be complied with because state officials

would know that the conditional writ contains an empty

threat, and states could do whatever they wanted without fear

of a final writ. It must be remembered that the very purpose

of the Habeas Corpus remedy is to force the states into doing

things that their own officials refused to do. :

If the federal courts do not have the authority to issue

conditional orders of Habeas Corpus with consequences

associated with the failure to comply, then the federal court

orders would be mere suggestions, not orders.

Under Petitioner Warden's theory, after receiving the

ruling in Hodge v. Hurley, supra, the State of Ohio could

have refused to retry Hodge within the 90 days, and if Hodge

were then to be set free by the federal court, the State could

then argue "If we had given him the new trial, he would have

had to face a jury, so the federal court is usurping the

function of the jury.”

The Habeas Corpus judgment was issued June 23,

2005. The State moved for reconsideration July 5, 2005, and

it was denied by order dated July 14, 2005. Sixty days from

July 14, 2005 was September 12, 2005. The Motion to Issue

\Inconditional Writ of Habeas Corpus was filed September

23, 2005, 11 days after the State's time to make the offer

Answer to Petition for Writ of Certiorari 17

expired. *

The State could have avoided the final writ of Habeas

Corpus and the attendant consequences they don't like, by

complying with the United States District Court order, and

offering Respondent Satterlee the 6 to 20 year bargain within

60 days. It was their choice not to make the offer, not

Respondent's. If they wanted Respondent to have the 6 to 20

and face the Parole Board, nothing would have been easier.

All they had to do is comply with the court's order. It 1s their

own default that turned Respondent's original remedy into an

even better remedy.

Another thing they could have done, within the 60

days, is to seek a stay of proceedings from the District Court,

and if that failed, from the Court of Appeals. They didn't do

that either. They go around violating court orders, and noi

taking available steps to relieve themselves from the orders,

in the hope that some appellate court will bail them out.

The lesson that the State should learn here is that

federal court orders should be obeyed, or stays of

proceedings sought. The District Court was clear that the

failure of the State to take action within the 60 days would

lead to a final writ of Habeas Corpus being issued on behalf

of Respondent Satterlee. The State unquestionably had

notice. The question is whether the State can void the orders

of the United States District Court by the simple expedient of

not following them. We submit they clearly cannot.

There is no automatic stay. F.R.Civ.P. 62 covers Stay

of Proceedings to Enforce a Judgment. It places on the

* Sixty days after the original judgment would be August 22.

18 Answer to Petition for Writ of Certiorari

appellant the responsibility of seeking a stay, and requires the

approval of the United States District Judge. F.R.Civ.P.

62(d). -See also Javitch v. First Union Securities, 315 F.3d

619 (6th Cir. 2003); Steele v. Industrial Development Board,

301 F.3d 401 (6th Cir. 2002); Lorillard Tobacco Co y. Reilly,

533 U.S. 525; 121 S.Ct. 2404; 150 L.Ed.2d 532 (2001);

Weingarten Nostat Inc. v. Service Merchandise Co Inc., 396

F.3d 737 (6th Cir. 2005); Hamby v. Neal, 368 F.3d 549 (6th

Cir. 2004); Baker v. Adams County Ohio Valley School

Board, 310 F.3d 927 (6th Cir. 2002); Grutter y. Bollinger,

247 F.3d 631 (6th Cir. 2001), involving granting or denying

motions for stays of the District Court judgment.

No stay was applied for, and none was issued, while

their 60 days was running. In other words, the State allowed

the 60 days to lapse, and 11 more days as well.

Petitioner, Warden Wolfenbarger, explains the failures

as follows (P.W.C. 6):

"Because Satterlee had already been

effectively paroled by the District Court, and

because the case was pending on appeal, the State

did not disturb the status quo."

We submit this explanation is ludicrously inadequate.

The United States District Court order requiring action

within 60 days contained no provision that the order did not

apply if the United States District Court released Respondent

on bond pending the State's appeal.

Moreover, the proper way to maintain the status quo is

to move for a stay, something they failed to do.

Moreover, when a conditional writ of Hlabeas Corpus ts

Answer to Petition for Writ of Certiorari 19

entered, the action of a state in ignoring the order could not

possibly result in a continuation of the status quo, something

that the attorneys for Petitioner knew, or should have known.

(he status quo could be maintained in such a situation only if

the courts allow the State to decide which court orders it will

choose to obey, and excuse them from obeying the orders

they do not like.

The explanation that the release on bond of Respondent

Satterlee amounted to being "effectively paroled" makes no

sense, because Satterlee was not placed on parole. The

release on bond did not involve any Parole Board

supervision. It was a temporary measure that would have

had effect only until Petitioner offered the plea bargain and

Mr. Satterlee accepted it, or until the appeals on the matter

had expired.

Hilton v. Braunskill, 107 S.Ct. 2113; 95 L.Ed.2d 724

(1987), holds that there is a presumption favoring release on

bond once a ruling is issued granting Habeas Corpus. The

State's argument that release on bond amounts to an unlawful

parole cannot be squared with the ruling in Hilton that there

is a presumption that release on bond will be granted pending

the State's appeal of the grant of Habeas Corpus.

If it is true that "Conditional writs enable habeas courts

to give States time to replace an invalid judgment with a

valid one, and the consequence when they fail to do so is

always release," Wilkinson v. Dotson, supra, then, under the

State's theory, every time Habeas Corpus is granted, the

federal courts are unlawfully interfering with state parole

boards. The State's argument Is therefore unreasonable.

Even if the action of the United States District Court in

20 Answer to Petition for Writ of Certiorari

releasing Mr. Satterlee somehow were to be found to amount

to a parole, there is no "grant of parole" exception to United

States District Court orders.

In short, if Respondent wanted Petitioner to face the

Parole Board, they had an easy way to accomplish that. The

only reason it was not accomplished by them was their own

procedural default. A federal court order that directs action

by a party, and which directs that further consequences will

attend if the party does not comply, would be worthless if the

party does not comply yet is freed from the further

consequences.

As the Sixth Circuit ruled in this case:

"Put in general terms, the state contends the

following: (1) the law say you must do A, or else

sanction B will be imposed; (2) even if it is

undisputed that you failed to do A, you can avoid

sanction B simply by pointing out that if you had

done A after all, then sanction B would not have

been imposed. We think it apparent that this

argument is illogical and merits no _ further

discussion."

This Court should therefore deny Certiorari, for the

only outcome of such a procedure would be a conventional

ruling upholding the well-established rule that if a federal

court issues a conditional writ of Habeas Corpus ordering

that the State must take action within a certain period of time

or a final writ of Habeas Corpus will be issued, and if the

State allows that period to expire without either complying

with the order or acquiring a stay of proceedings, then the

final writ of Habeas Corpus will be issued.

Answer to Petition for Writ of Certiorari 21

QUESTION _ 3: WHETHER THE RELEASE OF

RESPONDENT ON BOND -WAS ITSELF IMPROPER, OR

MADE ANY OTHER RULINGS IMPROPER

Hilton v. Braunskill, 107 S.Ct. 2113; 95 L.Ed.2d 724

(1987), holds that there is a presumption favoring release on

bond once a ruling is issued granting Habeas Corpus.

The State argues (P.W.C. 6): "The District Court

released Respondent over a month prior to the deadline

imposed for the State to offer the plea bargain to Petitioner."

We submit that the State could have obeyed the

conditional writ of Habeas Corpus whether Mr. Satterlee was

in a prison cell or released on bond and staying at his

mother's house. Counsel for the State had the address and

phone number of Mr. Satterlee's attorney (undersigned

counsel), and Pretrial Services of the United States District

Court had Mr. Satterlee's home address and phone number.

When the Michigan Attorney General's office received

the conditional writ of Habeas Corpus, it was their duty to

inform the Ingham County Prosecutor that action needed to

be taken within 60 days. Petitioner Warden does not assert

that any such contacting or informing was done.

The physical location of Mr. Satterlee at the time that

the State's 60 days expired is entirely irrelevant to the State's

ability to offer him the 6 to 20 plea bargain, unless the State

claims that they tried to make the offer, but could not find

him. However, they have made no such claim in this Court

or any lower court. Indeed, they admit that the reason they

did not comply with the order to make the offer was that they

22 Answer to Petition for Writ of Certiorari

concluded that the release on bond amounted to a "parole."

Implicit in their argument is that if the District Court order

were a parole, the phrase "sixty days" would somehow take

on some other meaning. The fact that the attorneys at the

Attorney General's office so seriously misunderstood the

legal effect of a release on bond Is not a legitimate excuse for

disobeying court orders.

If they had made the offer, Mr. Satterlee of course

would have accepted it (the alternative being to go back to

prison for 20 to 30 years). He would have been sentenced to

prison, then would have reasonably promptly faced the

Parole Board, the minimum of 6 years already having been

served. The District Court order of release on bond would not

have prevented the state court from sentencing Petitioner to 6

to 20, nor would it have prevented the Parole Board from

paroling or refusing to parole.

The State could have petitioned the District Court to

amend or revoke bond at any time during these proceedings,

citing changed circumstances. Whether Mr. Satterlee

remained on bond from the federal court or not, the power of

the state government to proceed with the offer, the plea, the

sentencing, and the parole consideration would be

unaffected.

The State cites no case, from the United States Supreme

Court or elsewhere, that release on bond amounts to parole,

or that release on bond terminates a Habeas Corpus case, or

that release on bond excuses a party to a Habeas Corpus

action from obeying orders of the United States District

Court.

The State essentially took a risk, gambling all on the

Answer to Petition for Writ of Certiorari 23

hope that the original ruling granting Habeas Corpus would

be reversed, and Respondent would be forced into returning

to prison for 20 to 30 years. The outcome here was a direct

result of their litigation tactics.

Petitioner Warden should not receive a benefit from the

failure to proceed with the plea bargain ordered by the ruling

of the United States District Court. Ifa party fails to comply

with the conditions set forth in a conditional federal court

order, that party cannot legitimately complain when the

federal court moves forward to a final order, granting relief

well recognized as within the power of a federal court in

rulings of the United States Supreme Court and United States

Courts of Appeals.

This Court should deny Certiorari because the only

result of such a proceeding would be a conventional ruling

upholding the well-established rule that the merits of the

Habeas Corpus ruling and the merits of release on bond

pending the State's appeal are two different questions, and

release on bond does not affect the duties of parties to

otherwise obey court orders.

Answer to Petition for Writ of Certiorari

CONCLUSION

Respondent Wynn Satterlee respectfully submits that

for the reasons stated above, the Sixth Circuit ruling was

correct despite Petitioner's novel arguments. This Court

should deny Certiorari and allow the Sixth Circuit ruling to

stand.

Respectfully submitted,

;

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JAMES STERLING LAWRENCE (P33664)

Attorney for Respondent Satterlee

828 W. Eleven Mile Road

Royal Oak, MI 48067

(248) 399-6930

Dated: February 6, 2007