United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER ON MOTION UNDER 28 U.S.C. §
F. COX UNITED STATES DISTRICT COURT JUDGE.
Scott R. Detloff (“Detloff”) pleaded guilty to
one count of mail theft, in violation of 18 U.S.C. §
1708, and was sentenced to a term of 60 months of
imprisonment. The matter is now before the Court on
Detloff's Motion to Vacate Sentence, brought under 28
U.S.C. § 2255, which asserts that Detloff's
attorneys provided ineffective assistance of counsel to him.
The parties have fully briefed the issues and the Court
concludes that an evidentiary hearing is not necessary.
explained below, the Court denies Detloff's
ineffective-assistance-of-counsel claims pertaining to
attorney Marshall Goldberg's representation, and his
claim that attorney Mark Satawa provided ineffective
assistance of counsel as to his plea agreement, for lack of
merit and declines to issue a certificate of appealability as
to those claims. However, the Court shall grant Detloff's
motion as to his claim that he was constructively denied
counsel at sentencing, by virtue of attorney Mark
Satawa's conduct at sentencing. As such, the Court
concludes that Detloff is entitled to be RESENTENCED by this
Court as to his mail theft conviction in Criminal Case No.
Criminal Case Number 13-20298, Detloff was charged with: 1)
Use of Counterfeit Access Device, in violation of 18 U.S.C.
§ 1029(a)(1) (Count One); 2) Aggravated Identity Theft,
in violation of 18 U.S.C. § 1028A (Count Two); 3) Bank
Fraud, in violation of 18 U.S.C. § 1344 (Count Three);
4) Theft of United States Mail, in violation of 18 U.S.C.
§ 1708 (Count Four); and 5) Possession of Stolen
Securities of the States and Private Entities, in violation
of 18 U.S.C. § 513(a) (Count Five).
was provided counsel, Marshall Goldberg
(“Goldberg”), who represented Detloff in all
proceedings until January 24, 2014.
filed several pretrial motions on Detloff's behalf,
including a Motion to Suppress Evidence (D.E. No. 27) that
sought to suppress evidence seized from a vehicle that
Detloff had been driving on the date of his arrest.
full briefing by the parties, and an evidentiary hearing that
was held over the course of several days, this Court denied
that motion in a December 30, 2013 Opinion & Order.
(See Docket Entry No. 48).
Court allowed Goldberg to withdraw as counsel on January 24,
2014, after Detloff expressed that he was not satisfied with
the Court allowed Goldberg to withdraw, Detloff was provided
with new counsel. Attorney Mark Satawa (“Satawa”)
began representing Detloff on January 27, 2014.
March 13, 2014, pursuant to a Rule 11 Agreement, Detloff
pleaded guilty to Theft of United States Mail in violation of
18 U.S.C. § 1708. In exchange for his plea, the
government agreed to dismiss the remaining charges against
Detloff. The parties agreed to a guidelines range of 57 to 71
months, reserving Detloff's right to dispute two elements
of the guidelines calculation at sentencing. In paragraph
2(B), the plea agreement carved out a right for Detloff to
dispute 1) a two-level enhancement based on the premise that
there were ten or more victims of his criminal conduct, and
2) the aggregate amount of loss calculated by the Government.
Detloff also agreed, as part of the Rule 11 plea, to waive
appeal of his conviction, and to waive appeal of his sentence
unless it exceeded the agreed-to range of 57 to 71 months.
25, 2014, three months after he entered his guilty plea, and
while he was still represented by Satawa, Detloff filed a
pro se motion to withdraw his guilty plea and
dismiss the indictment. (D.E. No. 63). Detloff argued that
the Government's handling of the case, and in particular
the lengthy delays between the federal complaint, the
indictment, and his initial appearance, violated the
Interstate Agreement on Detainers, the Speedy Trial Act, and
the Speedy Trial Clause of the Sixth Amendment. Detloff
asserted that Satawa had refused to file the motion on his
behalf based on Satawa's position that no violation had
2, 2014, Satawa filed a Sentencing Memorandum on behalf of
Detloff. (D.E No. 66).
next day, on July 3, 2014, Satawa filed a motion to withdraw
as defense counsel. (D.E. No. 67). Satawa's motion cited
conflicts with his client over Satawa's refusal to file
the motion to withdraw the guilty plea or to file certain
objections to the presentence report that Satawa believed to
lack a proper foundation in the facts and the law. The motion
stated that Satawa believed his continued representation of
Defendant would conflict with his obligations under Michigan
Rules of Professional Conduct and would jeopardize
Detloff's constitutional right to effective counsel.
(Id. at 3).
Court heard the motion to withdraw on July 14, 2014. At that
time, Satawa reiterated his concerns about Detloff's
insistence that he file motions and objections that he
believed to be improper. Detloff, however, informed the Court
that he wanted Satawa to continue representing him.
Court denied Satawa's motion to withdraw as defense
counsel, and ordered that Satawa act as stand-by counsel to
Detloff at Sentencing.
Order issued on July 14, 2014, this Court also denied
Detloff's motion seeking to withdraw his guilty plea.
(D.E. No. 73).
16, 2014, this Court held a sentencing hearing regarding
Detloff's mail theft conviction, and regarding a
supervised release violation. This Court ultimately sentenced
Detloff to 60 months imprisonment on the mail theft charge,
to run concurrently with any undischarged state sentence.
This Court also imposed a 24-month sentence on the supervised
release charge, to be served consecutively to the mail theft
filed a direct appeal. The Sixth Circuit granted Satawa's
motion to withdraw and appointed new counsel to represent
Detloff on appeal. In his direct appeal, Detloff: 1) appealed
his conviction and sentence, entered pursuant to his Rule 11
plea agreement, for mail theft; and 2) appealed his 24-month
custodial sentence imposed for his violation of supervised
release. On July 15, 2015, the Sixth Circuit issued a
decision on Detloff's direct appeal, wherein it: 1) ruled
that Detloff's waiver of the right to appeal in his Rule
11 Agreement precluded review of his claims that this Court
abused its discretion in denying his motion to withdraw plea
and precluded his challenge to his sentence; 2) declined to
address Detloff's claim that he suffered a constructive
denial of counsel at sentencing, ruling that claim could be
raised in post-conviction proceedings; and 3) vacated
Detloff's supervised release sentence and remanded for
resentencing. United States v. Detloff, 794 F.3d 588
(6th Cir. 2015).
September 21, 2015, Detloff filed a pro se Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
his Sentence. (D.E. No. 94). Detloff used a
“fill-in-the-blanks” form order for his §
2255 Motion. Detloff did not file a supporting brief or a
reply after the Government filed its brief in opposition to
February 16, 2016, this Court issued an order appointing
counsel to represent Detloff for purposes of his pending
§ 2255 motion. (D.E. No. 101). Attorney Robyn Frankel
(“Frankel”) was appointed to represent Detloff.
Detloff filed motions asking to add an additional claim and
requesting that the Court appoint a different attorney, of
Detloff's choosing, to represent him for purposes of his
§ 2255 Motion. In an Order issued on March 23, 2016,
this Court denied Detloff's request for a specific
attorney of his choosing, stating:
IT IS ORDERED that Detloff's motion asking that a
specific attorney of his choosing be appointed for him in
this action is DENIED WITH PREJUDICE. This Court does not
routinely appoint counsel for habeas petitioners at this
stage of the proceedings but did so under the somewhat
unusual circumstances presented here. If Detloff decides, at
any point in these proceedings, that he does not want Robyn
Frankel to represent him in this matter, he may notify the
Court in writing that he no longer wishes her representation.
But the Court expressly cautions Detloff that if he does so,
this Court does not intend to appoint new counsel for Detloff
(ie., Detloff would continue pro se in this matter
from that point onward).
No. 111 at Pg ID 645). The Court also gave the parties
deadlines for the filing of Detloff's amended § 2255
motion and the briefs to be filed in connection with it.
September 1, 2016, Detloff filed a Motion (D.E. No. 115)
wherein he stated that he no longer wished to be represented
by Frankel and that he preferred to proceed pro se.
Detloff further stated that he wished the “updated
briefing schedule [to] remain in place, ” with a
September 22, 2016 deadline for the filing of his amended
§ 2255 motion. This Court granted Detloff's request
and terminated Frankel's representation of Detloff in
this case, leaving Detloff proceeding pro se. (D.E.
September 14, 2016, Detloff filed his Amended § 2255
Motion. (D.E. No. 117). In it, Detloff asserts three
ineffective of assistance of counsel claims.
Detloff asserts that Mr. “Goldberg, counsel during
evidentiary hearings on a motion to suppress, provided
ineffective assistance. His errors caused evidence to be
admitted that would have otherwise been suppressed, leaving
no grounds for supporting an indictment.” (D.E. No. 117
at Pg ID 822).
second ground for relief, Detloff asserts that “Mark
Satawa, counsel during plea negotiations and sentencing,
provided ineffective assistance. These errors caused a more
severe sentence than the proper guideline range.” (D.E.
No. 117 at Pg ID 823).
third claim, Detloff asserts that his appellate counsel
“failed to investigate or raise the intended loss and
number of victims issues. He also failed to investigate or
understand the law as it pertained to the case and missed the
benefit of the district courts error.” (D.E. No. 117 at
Pg ID 825). As the facts supporting this third claim, Detloff
asserts: “Kevin Schad, appellate counsel, was deficient
for not raising two issues the district court inadvertently
carved out during the plea colloquy.” (Id.).
motion asks the Court to grant the following relief:
“that the evidence be suppressed and my sentence be
vacated. In the alternative, I should be remanded for
resentencing, or at a minimum, a Certificate of Appealability
issue and be permitted to raise the merits of the illegal
searches, intended loss, and number of victims before the
Sixth Circuit Court of Appeals.” (D.E. No. 117 at Pg ID
Government filed its response in opposition to the motion on
October 21, 2016 (D.E. No. 118), and Detloff filed his reply
brief on January 9, 2017. (D.E. No. 120).
Motion to Vacate, Set Aside, or Correct Sentence is brought
pursuant to 28 U.S.C. § 2255, which provides:
A prisoner in custody under a sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence imposed was in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a sentence, or that
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral ...