                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0218p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                   X
                            Petitioner-Appellee, -
 WYNN SATTERLEE,
                                                    -
                                                    -
                                                    -
                                                        Nos. 05-2013/2513
         v.
                                                    ,
                                                     >
 HUGH WOLFENBARGER,                                 -
                          Respondent-Appellant. -
                                                   N
                    Appeal from the United States District Court
                   for the Eastern District of Michigan at Detroit.
                 No. 03-71682—Arthur J. Tarnow, District Judge.
                                        Argued: June 9, 2006
                                 Decided and Filed: June 30, 2006
                       Before: MOORE, COLE, and CLAY, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Janet A. VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellant. James Sterling Lawrence, Royal Oak, Michigan, for Appellee. ON BRIEF: Janet
A. VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
James Sterling Lawrence, Royal Oak, Michigan, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
         KAREN NELSON MOORE, Circuit Judge. These consolidated appeals concern the grant
of habeas relief to Petitioner-Appellee Wynn Satterlee, a Michigan state prisoner who was convicted
by jury and sentenced after his trial counsel failed to inform him of a favorable plea offer. The
district court initially granted a conditional writ, ordering the state to reinstate the plea offer that
Satterlee never received. When the state failed to comply, the district court granted an unconditional
writ, ordering Satterlee’s immediate release and the expungement of his record of conviction.
        In No. 05-2013, the state challenges the judgment granting the conditional writ, arguing that
Satterlee failed to exhaust state-court remedies and that the district court made a clearly erroneous
factual finding. Because the state’s arguments are without merit, we AFFIRM.
        In No. 05-2513, the state challenges the judgment granting the unconditional writ, arguing
that the remedies of immediate release and expungement exceeded the district court’s power.
Because the state’s arguments are once again without merit, we AFFIRM, albeit with instructions

                                                   1
Nos. 05-2013/2513 Satterlee v. Wolfenbarger                                                                        Page 2


to clarify an ambiguity in the unconditional writ, which is discussed below. We REMAND for
further proceedings consistent with this opinion.
                                                I. BACKGROUND
        Satterlee was convicted by a Michigan jury of conspiring to deliver more than 650 grams of
cocaine and was sentenced to twenty to thirty years’ imprisonment. Satterlee appealed on grounds
not relevant here. The Michigan Court of Appeals affirmed, and the Michigan Supreme Court
denied leave to appeal. People v. Satterlee, No. 217262, 2000 WL 33521090 (Mich Ct. App. Mar.
28, 2000); People v. Satterlee, 659 N.W.2d 227 (Mich. 2000) (table decision).
         Satterlee moved for relief from judgment pursuant to Michigan Court Rule 6.502, arguing,
inter alia, that he was denied his Sixth Amendment right to the effective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985), when his
trial attorney, David Dodge, failed to relay to Satterlee a favorable plea offer that he would have
accepted. The state trial court denied relief, and both the Michigan Court of Appeals and the
Michigan 1Supreme Court denied leave to appeal. Joint Appendix (“J.A.”) at 93 (Circuit Court
decision); J.A. at 199 (Court of Appeals decision); People v. Satterlee, 661 N.W.2d 241 (Mich.
2003) (table decision).
        Satterlee filed a petition for a writ of habeas corpus. The district court conducted an
evidentiary hearing, where Dodge, John Cipriani (the state prosecutor in Satterlee’s case), Satterlee,
and Margaret Satterlee (Satterlee’s mother) testified. Satterlee v. Wolfenbarger (Satterlee I), 374
F. Supp. 2d 562, 570-74 (E.D. Mich. 2005) (ordering an evidentiary hearing); J.A. at 270-385 (Evid.
Hr’g Tr.). The district court made two findings of fact: (1) “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”; and
(2) “the plea offer of six to twenty years was never communicated to petitioner by his attorney David
Dodge.” Satterlee I, 374 F. Supp. 2d at 568-69. These factual findings were based largely on the
determination that Satterlee, his mother, and Cipriani were more credible than Dodge. Id.
        The district court concluded that “there is a reasonable probability that petitioner would have
accepted the plea offer that was made in this case.” Relying on our decision in Griffin v. United
States, 330 F.3d 733 (6th Cir. 2003), which had in turn relied on Strickland and Hill, the district
court granted a conditional writ based on Satterlee’s ineffective-assistance-of-counsel (“IAC”)
claim. Id. at 567, 569. The district court gave the state sixty days to reinstate the six-to-twenty-year
plea offer. Id. at 569-70. The state appeals this order in No. 05-2013, arguing that Satterlee failed
to exhaust state-court remedies and that the district court made a clearly erroneous factual finding.
        When the conditional writ’s sixty-day deadline passed, Satterlee applied for his immediate
release, to which the state responded by filing a motion in the district court for a stay pending its
appeal in No. 05-2013. The district court denied the state’s motion for stay and granted Satterlee
an unconditional writ, ordering his immediate release and the expungement of the record of his
conviction. Satterlee v. Wolfenbarger (Satterlee II), No. Civ. 03-71682-DT, 2005 WL 2704877
(E.D. Mich. Oct. 19, 2005). The state appeals this order in No. 05-2513, arguing that the remedies
of immediate release and expungement exceeded the district court’s power.
                                         II. STANDARD OF REVIEW
         In a habeas proceeding, we review de novo the district court’s legal conclusions, including
its ultimate decision to grant or deny the writ, and we review for clear error its factual findings.

         1
           The joint appendices filed in these two appeals are virtually identical. For the sake of simplicity, we cite only
to the joint appendix filed in No. 05-2013.
Nos. 05-2013/2513 Satterlee v. Wolfenbarger                                                         Page 3


Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004), cert. denied, — U.S. —, 126 S. Ct. 353 (2005);
Sawyer v. Hofbauer, 299 F.3d 605, 608 (6th Cir. 2002).
                         III. THE CONDITIONAL WRIT (No. 05-2013)
A. Exhaustion/Fair Presentment
        The state first argues that Satterlee did not satisfy the exhaustion requirement. A writ of
habeas corpus may not be granted unless the petitioner has exhausted available state-court remedies.
28 U.S.C. § 2254(b)(1). In order to satisfy the exhaustion requirement, “a petitioner’s claim must
be ‘fairly presented’ to the state courts before seeking relief in the federal courts.” Whiting v. Burt,
395 F.3d 602, 612 (6th Cir. 2005) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004); Picard v.
Connor, 404 U.S. 270, 275 (1971)). “It is sufficient if ‘the substance of a federal habeas corpus
claim’ be presented to the state courts, and there are instances in which ‘the ultimate question for
disposition’ will be the same despite variations in the legal theory or factual allegations urged in its
support.” Id. at 612-13 (quoting Picard, 404 U.S. at 277-78). Whether a habeas petitioner has
satisfied the exhaustion requirement is a question of law that we review de novo. E.g., Morris v.
Dretke, 413 F.3d 484, 491 (5th Cir. 2005); Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 368 (3d
Cir. 2002); Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002); Fortini v. Murphy, 257 F.3d
39, 44 (1st Cir. 2001), cert. denied, 535 U.S. 1018 (2002).
         The state concedes that Satterlee’s legal theory — that he was denied his Sixth Amendment
right to the effective assistance of counsel under Strickland and Hill when his trial attorney failed
to relay a favorable plea offer — was fairly presented to the state courts. Appellant Br. (05-2013)
at 20. Its exhaustion argument is instead premised on the contention that Satterlee did not fairly
present to the state courts the factual allegations underlying his legal theory. According to the state,
although the district court granted the writ based on Dodge’s failure to relay a six-to-twenty-year
offer made the morning of trial (“morning offer”), before the state courts Satterlee relied on Dodge’s
failure to relay a different offer — one that Dodge allegedly sent via letter to Satterlee a week before
trial (“letter offer”). Thus, the state argues, Satterlee did not fairly present his IAC claim to the state
courts.
        The state’s argument is without merit, as it is wrong on the facts. Although his IAC
argument in the state postconviction proceedings focused on the letter offer, Satterlee also notified
the state courts of the morning offer:
                There will be some factual disputes to be resolved at a hearing. The letter of
        David Dodge of November 30, 1998, which Defendant received only after being
        convicted and sentenced, refers to a plea offer of 3 to 7 years. Yet, present counsel
        spoke by telephone with prosecutor John Cipriani, and Mr. Cipriani states that there
        was never a plea offer of 3 to 7 years, but that there was a plea offer of 6 to 20 years.
        (See affidavit of James Lawrence). Something peculiar is going on here, where
        attorney Dodge after sentence comes up with letters never before seen by Defendant,
        allegedly advising him of an offer, yet the prosecutor says that offer was never made.
        At this point, Defendant and his counsel are unsure of who to believe, prosecutor
        Cipriani or attorney Dodge, who directly contradict each other. An evidentiary
        hearing is clearly needed.
J.A. at 104 (Br. in Supp. of Mot. for Relief from J. at 2 n.1) (emphases added), 155 (Br. in Supp. of
Application for Leave to Appeal at 5 n.1) (emphases added). Therefore, Satterlee informed the state
courts of Dodge’s failure to relay both plea offers, and the relief eventually granted by the district
Nos. 05-2013/2513 Satterlee v. Wolfenbarger                                                                        Page 4


court was based on one of them. Accordingly, Satterlee fairly presented both the legal and factual
bases of his IAC claim to the state courts.2
B. Factual Findings/Credibility
        The state next objects to a factual finding made by the district court. We review for clear
error a factual finding made pursuant to a habeas court’s evidentiary hearing. Carter v. Mitchell,
443 F.3d 517, 535 (6th Cir. 2006); Sawyer, 299 F.3d at 608. “‘A finding is clearly erroneous when
although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.’” Norris v. Schotten, 146 F.3d 314,
323 (6th Cir.) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)), cert. denied,
525 U.S. 935 (1998). “‘If there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.’” Caver v. Straub, 349 F.3d 340, 351 (6th Cir. 2003)
(quoting United States v. Kellams, 26 F.3d 646, 648 (6th Cir. 1994)). We afford the district court
particular deference when its factual findings are based on credibility determinations. Moss v.
United States, 323 F.3d 445, 457 (6th Cir.), cert. denied, 540 U.S. 879 (2003); United States v.
Oliver, 397 F.3d 369, 374 (6th Cir. 2005).
       After conducting an evidentiary hearing, the district court found that Satterlee, his mother,
and Cipriani were all more credible than Dodge. Satterlee I, 374 F. Supp. 2d at 568-69. Thus, the
court concluded that Dodge did not inform Satterlee of the morning offer. Id. at 568. The state
contends that this factual finding was clearly erroneous, arguing that Satterlee was not credible
because three statements he made at the evidentiary hearing were inconsistent with either his prior
pleadings or other parts of his testimony at the hearing.
         The state first claims that Satterlee changed his story about where he was when Dodge
allegedly mailed the letter offer. According to the state, Satterlee claimed before the state courts and
in his federal habeas petition that he was in Nevada, but at the evidentiary hearing he admitted he
was in Michigan. The first half of the state’s contention is true, as Satterlee did in fact claim in his
filings that he was in Nevada. J.A. at 26 (Br. in Supp. of Pet. for Habeas Corpus at 4), 78 (Satterlee
Aff. ¶ 6), 104 (Br. in Supp. of Mot. for Relief from J. at 2), 154 (Br. in Supp. of Application for
Leave to Appeal at 4). Satterlee did not, however, contradict this position at the evidentiary hearing.
Satterlee was never asked for his whereabouts at the time3 the letter offer was allegedly mailed, so
he never even had the opportunity to contradict himself.
       The state next contends that at the hearing Satterlee denied ever being notified of a seven-to-
twenty-year plea offer, even though elsewhere in his testimony he admitted to receiving a letter




         2
            Moreover, the IAC claim would be exhausted even if the state were right on the facts (i.e., if Satterlee had not
informed the state courts of the morning offer). The Supreme Court has explained that “presentation of additional facts
to the district court, pursuant to that court’s directions, [does not] evade[] the exhaustion requirement when the prisoner
has presented the substance of his claim to the state courts,” so long as “the supplemental evidence presented by [the
prisoner] d[oes] not fundamentally alter the legal claim already considered by the state courts.” Vasquez v. Hillery, 474
U.S. 254, 257-58, 260 (1986). The purportedly new evidence of the morning offer does not “fundamentally alter” the
claim that Dodge failed to relay a favorable plea offer that Satterlee would have accepted, as it would fit comfortably
within the rule that “[u]nder Vasquez and allied decisions, the petitioner may supplement and clarify the record, inter
alia, through . . . introduction of new factual materials supportive of those already in the record [or] presentation of
additional instances of the same alleged violation.” 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS
PRACTICE AND PROCEDURE § 23.3c, at 1088-89 (5th ed. 2005) (footnotes omitted).
         3
          Instead, Satterlee was simply asked whether the address on the letter was correct, and he testified that it was
not. J.A. at 367, 374-75 (Evid. Hr’g Tr. at 98, 105-06).
Nos. 05-2013/2513 Satterlee v. Wolfenbarger                                                      Page 5


containing such an offer.4 This time the second half of the state’s assertion is correct, as Satterlee
did in fact acknowledge receiving a letter containing a seven-to-twenty-year plea offer. See J.A. at
375 (Evid. Hr’g Tr. at 106) (referring to letter dated Sept. 16); J.A. at 73-74 (Letter of Sept. 16,
1998) (relaying the offer); see also J.A. at 77 (Satterlee Aff. ¶ 4) (acknowledging awareness of the
offer). As for the first part of its assertion (i.e., that Satterlee ever denied being informed of the
offer), the state offers no citation to the record in support, but it presumably relies on the following
exchange during the direct examination of Satterlee:
        Q. At that time, at the time that you were sentenced, were you still unaware of any
           offer of six to 20 or seven to 20?
        A. No, I was not.
        Q. Were you aware or unaware?
        A. I was not aware of any offer.
J.A. at 373-74 (Evid. Hr’g Tr. at 104-05). On its face, this testimony would seem to support the
state’s assertion that Satterlee denied being aware of the seven-to-twenty-year offer and therefore
contradicted himself. However, this exchange followed soon after a discussion of the morning offer
of six to twenty years. See J.A. at 370-71 (Evid. Hr’g Tr. at 101-02). Up to that point in the
testimony, the topic of the seven-to-twenty-year offer had not been raised. Given this context, it is
likely that Satterlee understood the question’s reference to the seven-to-twenty-year offer to be an
inadvertent slip, with the question actually directed at the six-to-twenty-year (morning) offer that
had just been discussed. Thus, it is difficult to conclude that Satterlee was inconsistent on this point.
          Finally, the state claims that Satterlee’s testimony that he would have accepted the morning
offer of six to twenty years is inconsistent with statements in various pleadings that he did not want
a sentence with a twenty-year maximum. This time, the state gets both halves of its assertion right,
as Satterlee both testified that he would have accepted the morning offer, J.A. at 371 (Evid. Hr’g Tr.
at 102), and said in his filings that he did not want a sentence with a twenty-year maximum, J.A. at
27 (Br. in Supp. of Pet. for Habeas Corpus at 5), 77 (Satterlee Aff. ¶ 4), 103 (Br. in Supp. of Mot.
for Relief from J. at 1), 155 (Br. in Supp. of Application for Leave to Appeal at 5 n.1). However,
these two positions are not necessarily inconsistent, for at least two reasons. First, one may very
well decide to accept a plea offer if its minimum sentence is low enough, even if its maximum
sentence is otherwise unappealing. In other words, Satterlee could have found the morning offer’s
six-to-twenty-year term palatable because of its six-year minimum, even if he did not like the
twenty-year maximum. Second, and more fundamentally, Satterlee testified that he “thought that
. . . the whole idea behind cooperating and doing everything they asked, giving statements, making
trips to Lansing, was to get the very best deal; that it was not to go to trial.” J.A. at 371 (Evid. Hr’g
Tr. at 102) (emphases added). Maintaining the negotiating position of being unwilling to accept a
twenty-year maximum is consistent with the objective of obtaining the best possible deal, while
accepting an offer of six to twenty years made immediately before trial is consistent with the
objective of avoiding trial. Cf. Griffin, 330 F.3d at 738 (“[The defendant’s] repeated declarations
of innocence do not prove, as the government claims, that he would not have accepted a guilty
plea.”). Satterlee was not incredible simply because he had these two objectives, which are probably
held by most criminal defendants.
        The above analysis demonstrates that Satterlee never really contradicted himself. In any
event, to the extent that certain statements were arguably inconsistent, we are not “‘left with the
definite and firm conviction that a mistake has been committed,’” Norris, 146 F.3d at 323 (quoting
Anderson, 470 U.S. at 573), especially because the factual findings hinged on credibility
determinations. Therefore, we conclude that the district court’s findings of fact were not clearly


        4
            The letter discussed in this paragraph is different from the “letter offer.”
Nos. 05-2013/2513 Satterlee v. Wolfenbarger                                                                        Page 6


erroneous. The state does not dispute that, given these facts, the state courts’ denial of Satterlee’s
IAC claim “was contrary to, or involved an unreasonable application of, clearly established Federal
law,” i.e., Strickland and Hill. See 28 U.S.C. § 2254(d)(1). Accordingly, we affirm the grant of the
conditional writ.
                                 IV. The Unconditional Writ (No. 05-2513)
A. Unconditional Release
        The district court issued a conditional writ, allowing Satterlee to apply for immediate release
unless the state made within sixty days a plea offer of six to twenty years. Satterlee I, 374 F. Supp.
2d at 569-70. Because the state made no such offer in the allotted time, the district court granted
an unconditional writ ordering Satterlee’s immediate release. Satterlee II, 2005 WL 2704877, at *3.
The state contends that the district court did not have the power to order this remedy.
         What the state appears to have forgotten is that it did not comply with the conditional writ.
As a sister circuit has explained, “[c]onditional [writs] are essentially accommodations accorded to
the state. They represent a [habeas] court’s holding that a[n] . . . infirmity justifies petitioner’s
release. The conditional nature of the order provides the state with a window of time within which
it might cure the . . . error.” Phifer v. Warden, 53 F.3d 859, 864-65 (7th Cir. 1995). When the state
fails to cure the error, i.e., when it fails to comply with the order’s conditions, “[a] conditional grant
of a writ of habeas corpus requires the petitioner’s release from custody.” Fisher v. Rose, 757 F.2d
789, 791 (6th Cir. 1985) (emphasis added); accord, e.g., Wilkinson v. Dotson, 544 U.S. 74, 87
(2005) (Scalia, J., concurring) (“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.”); Henderson v. Frank, 155 F.3d 159, 168 (3d Cir. 1998); Phifer, 53 F.3d at 864-65; 2
RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 33.3,
at 1684 (5th ed. 2005) (“If the state fails to act within the time set for retrial (or for    some other
proceeding) to occur, the petitioner must be released from custody immediately.”).5
        The state offers no authority contrary to those cited above; instead, it offers an argument that
we reject for the reasons stated in the margin.6 Thus, we conclude that the district court acted well
within its power by ordering Satterlee’s immediate release.




         5
          In accordance with these principles, this court has consistently endorsed the use of conditional writs, whether
by affirming district courts that grant them, e.g., Madrigal v. Bagley, 413 F.3d 548, 553 (6th Cir. 2005); Jamison v.
Collins, 291 F.3d 380, 392 (6th Cir. 2002), instructing district courts to grant them, e.g., Hodge v. Hurley, 426 F.3d 368,
389 (6th Cir. 2005); Miller v. Webb, 385 F.3d 666, 678 (6th Cir. 2004), or granting them itself, e.g., Clinkscale v. Carter,
375 F.3d 430, 446 (6th Cir. 2004), cert. denied, 543 U.S. 1177 (2005). Such decisions would be meaningless if a habeas
court could not order a noncompliant state to release a prisoner.
         6
           From what we can determine, this is the state’s argument: (1) if the state had made (and Satterlee had
accepted) the offer mandated by the conditional writ, then Satterlee would now be in prison, subject to release only via
parole; (2) thus, the subsequent grant of immediate release was a “usurpation of the authority of the Michigan Parole
Board.” Appellant Br. (05-2513) at 8. The state is basically asking us to ignore the well-settled precedent and practice
(cited above) establishing that the consequence of a state’s failure to comply with a conditional writ is release of the
prisoner. We decline to do so.
          The state’s argument also fails as a matter of common sense. Put in general terms, the state contends the
following: (1) The law says 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.
Nos. 05-2013/2513 Satterlee v. Wolfenbarger                                                                          Page 7


B. Expungement
        Finally, the state objects to the portion of the unconditional writ ordering the expungement
of the record of Satterlee’s conviction. Satterlee II, 2005 WL 2704877, at *3. The state argues that
this remedy was improper because a district court’s only power when granting a writ of habeas
corpus is to order the release of the prisoner.
        It appears that we have never expressly addressed whether habeas courts have the power to
order the expungement of the record of a conviction. We conclude that they do. The habeas statute
provides that “[t]he court shall . . . dispose of the matter as law and justice require.” 28 U.S.C.
§ 2243 (emphasis added). Based on this broad language, the Supreme Court has explained that the
remedial power possessed by habeas courts is not limited to ordering a prisoner’s discharge from
physical custody. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); Carafas v. LaVallee, 391 U.S.
234, 239 (1968); Peyton v. Rowe, 391 U.S. 54, 66-67 (1968). Accordingly, other circuits have
already recognized the power to order expungement. A.M. v. Butler, 360 F.3d 787, 802 (7th Cir.
2004); United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir. 2000); United States v. Pinto, 1 F.3d
1069, 1070 (10th Cir. 1993); White v. White, 925 F.2d 287, 292 (9th Cir. 1991); Mizell v. Att’y Gen.,
586 F.2d 942, 948 (2d Cir. 1978), cert. denied, 440 U.S. 967 (1979); Woodall v. Pettibone, 465 F.2d
49, 53 (4th Cir. 1972), cert. denied, 413 U.S. 922 (1973); 2 HERTZ & LIEBMAN, supra, § 33.4, at
1688, 1698-99 (“[P]otentially appropriate remedies include . . . [o]rders requiring . . . expungement
of criminal records . . . .”). Once again, the state cites no authority limiting the power of a habeas
court in the manner that it suggests. Therefore, we affirm the unconditional writ’s order of
expungement.
C. Reprosecution
        Although we affirm the district court’s decision to order both Satterlee’s immediate release
and the expungement of his record of conviction, the unconditional writ leaves ambiguous an
important issue: whether the state may reprosecute Satterlee. In a typical case in which a prisoner
is released because a state fails to retry the prisoner by the deadline set in a conditional writ, “the
state is not precluded from rearresting petitioner and retrying him under the same indictment.”
Fisher, 757 F.2d at 791; accord, e.g., Foster v. Lockhart, 9 F.3d 722, 727-28 (8th Cir. 1993); Moore
v. Zant, 972 F.2d 318, 320 (11th Cir. 1992), cert. denied, 507 U.S. 1007 (1993); 2 HERTZ &
LIEBMAN, supra, § 33.3, at 1686 (“[F]ederal courts usually permit rearrest and retrial after the time
period specified in the conditional release order has elapsed and the prisoner has been released.”).
However, in “extraordinary circumstances,” such as when “the state inexcusably, repeatedly, or
otherwise abusively fails to act within the prescribed time period or if the state’s delay is likely to
prejudice the petitioner’s ability to mount a defense at trial,” a habeas court may “forbid[]
reprosecution.” 2 HERTZ & LIEBMAN, supra, § 33.3, at 1685-86 (footnotes omitted). It is not clear
whether the unconditional writ granted by the district court is unconditional (1) in the sense that it
is effective immediately but reprosecution is permitted or (2) in the sense that it bars reprosecution.
Thus, we instruct the district court to clarify on remand which   of these meanings it intended and,
if it meant to forbid reprosecution, to justify its conclusion.7

         7
           If the district court permits reprosecution, it should also consider whether “law and justice require,” 28 U.S.C.
§ 2243, the writ to include a provision mandating the state to reinstate the six-to-twenty-year offer if it ever chooses to
reprosecute Satterlee. The ineffective assistance of counsel is “subject to the general rule that remedies should be
tailored to the injury suffered from the constitutional violation.” United States v. Morrison, 449 U.S. 361, 364 (1981).
“The only way to effectively repair the constitutional deprivation [the petitioner] suffered is to restore him to the position
in which he would have been had the deprivation not occurred.” Lewandowski v. Makel, 949 F.2d 884, 889 (6th Cir.
1991). Where, as here, a defendant receives a greater sentence than one contained in a plea offer that he would have
accepted if not for the ineffective assistance of counsel, the properly tailored remedy is to give the defendant the
opportunity to accept the offer, because simply retrying the petitioner without making the plea offer would not remedy
the constitutional violation that led to the issuance of the writ. Turner v. Tennessee, 858 F.2d 1201, 1208 (6th Cir. 1988)
Nos. 05-2013/2513 Satterlee v. Wolfenbarger                                                                     Page 8


                                               V. CONCLUSION
       For the reasons set forth above, we AFFIRM the grant of the conditional writ in No. 05-
2013, AFFIRM the grant of the unconditional writ in No. 05-2513 with instructions to clarify, and
REMAND for further proceedings consistent with this opinion.




(“[T]he only way to neutralize the constitutional deprivation suffered . . . would seem to be to provide [the petitioner]
with an opportunity to consider the State’s two-year plea offer with the effective assistance of counsel.”), vacated on
other grounds, 492 U.S. 902 (1989); Nunes v. Mueller, 350 F.3d 1045, 1057-58 (9th Cir. 2003), cert. denied, 543 U.S.
1038 (2004); United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994); United States v. Rodriguez Rodriguez, 929
F.2d 747, 753 n.1 (1st Cir. 1991); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982); see also
Lewandowski, 949 F.2d at 887, 889 (ordering release when the defendant had already served a longer sentence than
would have been possible under a favorable plea offer); Boria v. Keane, 99 F.3d 492, 499 (2d Cir. 1996) (same), cert.
denied, 521 U.S. 1118 (1997).
