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United States v. Detloff

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

March 28, 2017

United States of America, Plaintiff/Respondent,
v.
Scott R. Detloff, Defendant/Petitioner. Civil No. 15-13329

          OPINION & ORDER ON MOTION UNDER 28 U.S.C. § 2255

          SEAN F. COX UNITED STATES DISTRICT COURT JUDGE.

         Defendant/Petitioner 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.

         As 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. 13-20298.

         BACKGROUND

         In 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).

         Detloff was provided counsel, Marshall Goldberg (“Goldberg”), who represented Detloff in all proceedings until January 24, 2014.

         Goldberg 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.

         After 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).

         The Court allowed Goldberg to withdraw as counsel on January 24, 2014, after Detloff expressed that he was not satisfied with Goldberg's representation.

         After the Court allowed Goldberg to withdraw, Detloff was provided with new counsel. Attorney Mark Satawa (“Satawa”) began representing Detloff on January 27, 2014.

         On 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.

         On June 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 occurred.

         On July 2, 2014, Satawa filed a Sentencing Memorandum on behalf of Detloff. (D.E No. 66).

         The 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).

         The 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.

         This Court denied Satawa's motion to withdraw as defense counsel, and ordered that Satawa act as stand-by counsel to Detloff at Sentencing.

         In an Order issued on July 14, 2014, this Court also denied Detloff's motion seeking to withdraw his guilty plea. (D.E. No. 73).

         On July 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 sentence.

         Detloff 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).

         On 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 his motion.

         On 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.

         Thereafter, 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).

         (D.E. 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.

         On 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. No. 116).

         On September 14, 2016, Detloff filed his Amended § 2255 Motion. (D.E. No. 117). In it, Detloff asserts three ineffective of assistance of counsel claims.

         First, 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).

         As his 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).

         As his 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.).

         Detloff's 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 831).

         The 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).

         ANALYSIS

         Petitioner's 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 ...

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