Butler v. Estes et al
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 6/10/15. (SAC )
2015 Jun-10 PM 12:56
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LARRY LEE BUTLER,
WARDEN DEWAYNE ESTES,
This is an action on a petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. §§ 2241 and 2254 by Larry Lee Butler
(“Petitioner” or “Butler”), an Alabama state prisoner acting pro
Butler is confined at the Limestone Correctional
Facility in Harvest, Alabama.
He is serving four concurrent life
sentences following his guilty plea conviction in the Circuit
Court of Marion County, Alabama, on four counts of solicitation
to commit murder, in violation of Ala. Code §§ 13A-6-2 and 13A-41.
On April 6, 2015, the magistrate judge entered a report
pursuant to 28 U.S.C. § 636(b) and FED. R. CIV. P.
recommending that the petition be denied on the ground that it is
Citations to “Doc(s). ___” are to the pleadings, motions,
and other documents in the court file, as compiled by the clerk
of the court and numbered on the docket sheet. Unless otherwise
noted, poinpoint citations are to the page of the electronically
filed document, which may not correspond to the pagination on the
original “hard copy.”
barred by the statute of limitations, 28 U.S.C. § 2244(d)(1).
On April 24, 2015, the undersigned entered a
memorandum opinion and accompanying final order that adopted the
magistrate judge’s report and accepted his recommendation over
Butler’s objections, dismissed the action with prejudice as time
barred, and denied a certificate of appealability under 28 U.S.C.
(Docs. 10, 11).
The cause now comes to be heard in
consideration of three post-judgment filings by Butler that were
all docketed by the clerk of this court on June 1, 2015, namely:
(1) a motion “to vacate, set aside and hold for naught” the
court’s memorandum opinion and final order entered April 24,
2015, which also includes a motion by Butler for leave to amend
his habeas petition (Doc. 12); (2) a notice of appeal (Doc. 13);
and (3) a motion to proceed on appeal in forma pauperis (“IFP”)
For the reasons explained below, the court concludes
as follows: (1) Butler’s motion “to vacate, set aside and hold
for naught” the court’s final order, treated as motion to alter
or amend the judgment pursuant to FED. R. CIV. P.
59(e), is due
to be denied; (2) his motion for leave to amend his habeas
petition is due to be denied; (3) his motion for leave to proceed
IFP on appeal is due to be denied; and (4) that Butler is not
entitled to a certificate of appealability under 28 U.S.C. §
Butler’s motion styled as one “to vacate, set aside and hold
for naught” the court’s final order dismissing the action is due
to be treated as a motion to alter or amend the judgment under
FED. R. CIV. P.
59(e) if timely filed within 28 days of the
court’s judgment, or, if filed after that deadline, as a motion
for relief from judgment under FED. R. CIV. P.
v. Ray, 326 F.3d 1176, 1177 n.1 (11th Cir. 2003); Stanislas v.
Publix Super Markets, Inc., 2014 WL 3053212, at *1 n.1 (M.D. Fla.
July 7, 2014).
Although Butler’s motion was docketed on June 1,
2015, it is signed and dated May 20, 2015.
(Doc. 12 at 9).
Under the prison mailbox rule, a filing by a pro se prisoner is
deemed filed when it is presented to prison authorities for
mailing, see Houston v. Lack, 487 U.S. 266, 275-76 (1988), and
absent evidence to the contrary, it is presumed that a filing was
so presented on the date signed.
1223, 1227 (11th Cir. 2009).
McCloud v. Hooks, 560 F.3d
Because Butler’s motion appears to
be due to be deemed filed May 20, 2015, which is within 28 days
of the court’s judgment entered April 24, 2015, the motion will
be treated as one made pursuant to Rule 59(e).
At the same time he filed his Rule 59(e) motion, Butler also
filed a notice of appeal, which generally divests a district
court of jurisdiction to take any action in a case except in aid
of the appeal.
United States v. Diveroli, 729 F.3d 1339, 1341
(11th Cir. 2013); In re Mosley, 494 F.3d 1320, 1328 (11th Cir.
However, the filing of a timely Rule 59(e) motion renders
a notice of appeal ineffective until the district court enters an
order dismissing the motion.
See FED. R. APP. P. 4(A)(4)(B)(i);
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61
(1982); Stansell v. Revolutionary Armed Forces of Columbia, 771
F.3d 713, 745-46 (11th Cir. 2014); 11 C. Wright. A. Miller, et
al., Fed. Prac. & Proc. § 2821 (3d ed.).
Thus, this court
retains jurisdiction to consider Butler’s Rule 59(e) motion
despite his notice of appeal.
“Rule 59(e) permits a court to alter or amend a judgment,
but it ‘may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior
to the entry of judgment.’ ” Exxon Shipping Co. v. Baker, 554
U.S. 471, 485 n.5 (2008) (quoting 11 C. Wright, A. Miller, et
al., Fed. Prac. & Proc. § 2810.1, pp. 127-128 (2d ed. 1995)
(footnotes omitted)); see also Stansell, 771 F.3d at 746; In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (recognizing that
Rule 59(e) motions may only be granted based on “newlydiscovered evidence or manifest errors of law or fact.”).
Whether to grant relief under Rule 59(e) is a matter committed to
the discretion of the district court.
See Stansell, 771 F.3d at
In the first section of his motion, Butler rehashes several
arguments previously made, to the effect that his substantive
claims for habeas relief are meritorious and related to whether
he is entitled to a period of equitable tolling of the
(Doc. 12 at 1-6).
Insofar as Butler merely
repeats prior arguments, such can afford no basis for relief
under Rule 59.
However, Butler now also makes a new argument in
support of equitable tolling.
In that claim, Butler alleges
that, pursuant to the orders of the state trial judge, beginning
in October 2011, several months before Butler pled guilty and was
sentenced on January 24, 2012, until approximately the first week
of March 2012, he “was held in total solitary confinement/
isolation in the Marion County Jail, ... with no paper, pens,
envelopes, stamps, books, legal papers, no access to a telephone
to contact anyone, even his attorney’s (sic).”
(Doc. 12 at 4-5).
Thereafter, Butler asserts, he was transferred to Kilby
Correctional Facility in Mt. Meigs, Alabama, where, also pursuant
to the same court orders, he remained “in lockup/solitary
confinement and barred ... from mailing out or receiving mail,
... from going to the law library, and was barred or prohibited
from making any telephone calls to anyone.”
(Id. at 5 (emphasis
Such isolation continued, Butler contends,“through
In a proposed amended habeas petition
attached to the motion, Butler makes both that same allegation
that he remained in solitary confinement until June 2012 (Doc.
12-1 at 6), as well as an apparently inconsistent one that he was
held “in confinement under the severe restrictions of the [state
trial judge’s] court orders ... from January 24, 2012 through
(Id. at 17 (emphasis original); see also id. at
In any event, Butler now argues that such highly
restrictive confinement constituted a state-imposed obstacle that
prevented him from filing a timely § 2254 habeas petition and
warrants equitable tolling of the limitations period.
at 5-6; Doc. 12-1 at 2-6, 15-20).
The court concludes, however, that Butler is not entitled to
relief under Rule 59(e) based on this argument.
59(e) cannot be used to raise arguments or evidence that could
have been raised prior to the entry of judgment.
554 U.S. at 485 n.5; Stansell, 771 F.3d at 746.
Butler had every
incentive and opportunity to raise this particular tolling
argument before entry of judgment against him, yet he wholly
failed to articulate it.
To wit, the State raised a statute-of-
limitations defense in its answer, further acknowledging
expressly the principle of equitable tolling and citing relevant
(Doc. 5 at 3-6).
The court then entered an order
giving notice that it intended to rule on the petition summarily
based upon the defenses in the State’s answer, inviting Butler to
submit materials potentially “to establish,” among other things,
“equitable tolling of the limitations period” and referring
Butler to the seminal Supreme Court decision on the issue,
Holland v. Florida, 560 U.S. 631 (2010).
(Doc. 6 at 2).
has, of course, been aware at all times the nature of the
conditions under which he has been confined.
But when he replied
to the State’s answer, although he claimed to be entitled to
equitable tolling, he did not make such an argument premised upon
allegations that he had been kept in restrictive conditions of
confinement following his guilty plea.
(See Doc. 7).
magistrate judge entered an 11-page report and recommendation
that addressed all of the equitable tolling arguments that Butler
did make, concluding that they were due to be rejected and that
the petition should be denied as untimely.
then filed an objection to the report and recommendation in which
he insisted at length that the magistrate judge erred in
declining to apply equitable tolling, but again, Butler made no
tolling claim based on restrictive conditions of confinement for
an extended period following his guilty plea.
(Doc. 9 at 13-21).
Rather, Butler raises that particular claim for the first time
only in his instant motion, with no explanation for why he failed
to raise it in any of the 77-or-so pages of documents he filed
with this court before final judgment.
On that procedural basis
alone, Butler’s new tolling argument does not provide a basis for
relief under Rule 59(e).
But even overlooking Butler’s failure to raise this tolling
argument prior to judgment, his allegations would still be
insufficient to save his § 2254 petition from being dismissed as
It might be assumed for the sake of argument that the
limitations period was tolled throughout the period that Butler
allegedly remained in restrictive confinement.
Butler seems to
claim that such state of affairs continued until either June 2012
or September 2012.
Butler does not explain that discrepancy, but
even if one accepts the later date and assumes that the
limitations period did not commence until October 1, 2012, it
would have run from that date for 351 days until being tolled on
September 17, 2013, when Butler filed a petition for
postconviction relief in the state trial court pursuant to ALA.
R. CRIM. P. 32.2
See 28 U.S.C. § 2244(d)(2); McCloud, 560 F.3d at
The Alabama Court of Criminal Appeals stated in its opinion
on Butler’s collateral appeal that he filed his Rule 32 petition
in the state trial court on September 17, 2013. (Doc. 5-1 at 1).
Butler himself says that such filing occurred on September 19,
2013. (Doc. 1-1 at 4, ¶ VIII; Doc. 12-1 at 6). However, the
court will here assume the correctness of the September 17th
filing date because it is more advantageous to Butler. The court
would also note that if Butler’s Rule 32 petition were deemed
untimely under state law by the Alabama courts, the petition
would not be “properly filed” for purposes of § 2244(d)(2) and
would have no tolling effect. See Allen v. Siebert, 552 U.S. 3,
5-7 (2007). The State appears to have raised a time-bar argument
in the Rule 32 proceedings. (See Doc. 5-1 at 2). And despite
the fact that Butler’s Rule 32 petition would appear to have been
filed well over a year after his conviction became final under
That statutory tolling period would have continued while
Butler’s collateral appeal remained “pending” in the state
See 28 U.S.C. § 2244(d)(2); Lawrence v. Florida, 549
U.S. 327, 332 (2007).
However, while a properly filed Rule 32
petition tolls the limitations period under § 2244(d)(2), it does
not reset it.
See San Martin v. McNeil, 633 F.3d 1257, 1266
(11th Cir. 2011).
As such, the limitations period would have
resumed running after the Alabama Supreme Court issued an order
denying Butler’s petition for certiorari review in the Rule 32
appeal and a certificate of judgment was issued on December 5,
(See Doc. 1-1 at 7, ¶¶ XVII, XVIII).
period would have then expired 14 days later on December 19,
2014, because Butler did not file his federal habeas petition
until January 24, 2015, when he indicates he presented it to
prison officials for mailing.
(Doc. 1-1 at 29).
giving Butler the benefit of essentially every doubt, his § 2254
petition would still be time barred by more than a month.
is not entitled to relief based on his new equitable tolling
argument based on his allegedly restrictive conditions of
confinement in the period following his guilty plea conviction.
state law, see Rule 32.2(c), ALA. R. CRIM. P., it is clear that
the Alabama Court of Criminal Appeals, the last court making a
reasoned decision, rejected Butler’s Rule 32 claims on the
merits, not untimeliness. (Doc. 5-1). Accordingly, the court
assumes here that Butler’s Rule 32 filing would toll the federal
limitations period under § 2244(d)(2).
The remainder of Butler’s Rule 59(e) motion is devoted to
the proposition that he is entitled to amend his habeas petition
under FED. R. CIV. P.
15(a), which governs amendments to
pleadings in civil cases.
(Doc. 12 at 6-8).
generally applies in habeas cases.
v. Felix, 545 U.S. 644, 649 (2005).
That rule also
See 28 U.S.C. § 2242; Mayle
However, FED. R. CIV. P.
15(a) has no application once the district court has dismissed
the complaint and entered final judgment for the defendant.
Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344-45
(11th Cir. 2010). Nonetheless, a plaintiff may seek leave to
amend if he is granted relief under Rule 59(e).
the court will construe Butler’s allegations in his proposed
amended petition (Doc. 12-1) and any related arguments as offered
in the service of his Rule 59(e) motion itself.
Insofar as Butler claims that he is entitled to amend his
habeas petition in order to allege facts supporting an
application of equitable tolling arising from restrictive
conditions of confinement following his guilty plea and
incarceration thereafter (see Doc. 12-1 at 15-20), such argument
is rejected for the reasons stated in the preceding section.
However, Butler also now contends that he is entitled to amend
his petition based upon “newly discovered evidence” that he
posits to establish “not only [that he] is innocent of the
charges of solicitation to commit murder, but also that law
enforcement agents were actively involved in framing [him] on
criminal charges of solicitation to commit murder while he was
incarcerated in the Marion County Jail.”
(Doc. 12-1 at 12).
the reasons stated below, the court disagrees.
Butler recites that he was arrested in June 2011 on charges
of conspiracy to commit murder and solicitation to commit murder,
which preceded a 12-count indictment in August 2011, comprised of
five counts of conspiracy to commit murder, five counts of
solicitation to commit murder, and two counts of attempted
(Doc. 1-1 at 3, ¶¶ I, II).
Butler alleges in his habeas
petition that, while held on those charges in the Marion County
Jail, he was accused of soliciting another murder.
(Id. at 4, ¶
As to that episode, Butler claims that the solicitation was
in a letter that he was physically coerced to write by another,
unidentified inmate who held a “razor knife to [Butler’s]
Nonetheless, that transaction resulted in
Butler’s being arrested and indicted on yet another count of
murder solicitation in October 2011.
In January 2012 he
pled guilty to three of the solicitation counts from the June
2011 indictment and to the solicitation count from the October
2011 indictment, and he was sentenced to four concurrent life
(Id. at 4, ¶ VII).
In his instant claim, Butler
maintains that “newly discovered evidence ... has come to light
since his guilty plea proceeding and his filing his Rule 32, ALA.
R. CRIM. P. petition.”
(Doc. 12-1 at 12).
That evidence, Butler
insists, “establishes that [he] did not make the telephone calls
from the Marion County Jail, nor did he write the letters freely
and voluntarily of his own free will while incarcerated in the
Marion County jail, prior to him being placed in solitary
confinement, which formed the basis of the criminal solicitation
to commit murder charges.”
Specifically, Butler points to
two affidavits appended to his proposed amended habeas petition,
sworn by two inmates who appear to have been confined at the
Limestone Correctional Facility along with Butler.
1 at 22; Doc. 12-2).
(See Doc. 12-
The first is an affidavit of one Brandon
Ray Moore, dated June 15, 2014, which states in material part as
I Brandon Moore am alleging the (sic) Morrison
Putt told me a (sic) Hamilton A and I3 that he another
man made phone calls in the Marion County Jail and made
it look like Larry Butler made them because Butler
refused to make the calls. Morrison Putt told me that
occurred after he had put a razor knife to Butler’s
throat and made him write letters to a friend. Putt
told me he also wrote some letters and made [B]utler
mail them to his friend after he had made a deal with
the law that if he did this he would get gun charges
off of him or some help with the charges.
(Doc. 12-1 at 22 (footnote added)).
The second is an undated
This is presumably a reference to Hamilton Aged and
Infirmed, an Alabama state prison in Hamilton, Alabama.
affidavit from Steven Brock who makes materially similar
I Steven Brock am alleging that Morrison Putt told
me after I asked him if he has the one that made the
phone calls making it look like Larry Butler had made
them in the Marion County Jail. Also, Morrison Putt
told me that after the making Butler write letters to
Morrison Putt’s friend, he and another made did make
those calls instead of Butler. Further, Putt said he
had to do it to get a gun charge off him so he made a
deal with law enforcement that he would get Butler to
write the letters.
Such evidence is potentially significant because a state
prisoner is entitled to have habeas claims in a § 2254 petition
heard on their merits even if they would be barred by the
limitations period of § 2244(d)(1) where the prisoner is able to
make a “convincing showing of actual innocence.”
Perkins, 569 U.S. ___, ___, 133 S. Ct. 1924, 1928 (2013).
however, Rule 59(e) is not a vehicle for presenting arguments and
evidence that could have been presented prior to final judgment.
While Butler claims that the affidavits constitute “newly
discovered evidence ... which has come to light since his guilty
plea proceeding and his filing his Rule 32, ALA. R. CRIM. P.
petition” (Doc. 12-1 at 12), Butler does not allege that he did
not have these affidavits prior to this court’s entry of final
judgment on April 24, 2015.
Indeed, Moore’s affidavit is dated
June 15, 2014, more than seven months before Butler even filed
this action, and while Brock’s similar affidavit is undated, this
is the first that the court is hearing of either of them. “When
supplementing a Rule 59(e) motion with additional evidence, the
movant must show either that the evidence is newly discovered or,
if the evidence was available at the time of the decision being
challenged, that counsel made a diligent yet unsuccessful effort
to discovery the evidence.”
Chery v. Bowman, 901 F.2d 1053, 1057
n.6 (11th Cir. 1990) (citing Taylor v. Texgas Corp., 831 F.2d
255, 259 (11th Cir. 1987); American Home Assur. Co. v. Glenn
Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985)).
Butler’s instant motion falls short in this regard, as to both
But even if the affidavits were considered despite Butler’s
procedural failing, he would still fail to make a sufficient
showing of actual innocence that would allow him to overcome the
Under the McQuiggin exception, “prisoners asserting
innocence as a gateway to defaulted claims must establish that,
in light of new evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006)
(quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)).
standard “is demanding and permits review only in the
Schlup, 513 U.S. at 327 (quoting
McCleskey v. Zant, 499 U.S. 467, 494 (1991)).
credible’ a gateway claim requires ‘new reliable evidence-whether
it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence-that was not presented at
House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at
The district court then considers “all of the evidence,
old and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under rules of
admissibility that would govern at trial.”
Id., 547 U.S. at 538
(quoting Schlup, 513 U.S. at 327-28 (internal quotation marks and
further citation omitted)).
“Based on this total record, the
court must make “a probabilistic determination about what
reasonable, properly instructed jurors would do.” Id. (quoting
Schlup, 513 U.S. at 329)).
In order to warrant an evidentiary
hearing, a petitioner must make “a threshold showing of actual
The timing of the submission is relevant, as is the
likely credibility of the affiants.”
Sibley v. Culliver, 377
F.3d 1196, 1206 (11th Cir. 2004) (citation omitted).
“[i]n cases where the Government has foregone more serious
charges in the course of plea bargaining, petitioner’s showing of
actual innocence must also extend to those charges.”
United States, 523 U.S. 614, 624 (1998).
Butler’s showing, including the affidavits, does not come
close to warranting an evidentiary hearing on actual innocence.
Butler’s own self-serving, conclusory, and belated protests of
innocence despite his guilty plea are not themselves the stuff of
which McQuiggin gateway claims are made.
See Flores v. McFadden,
152 F. App’x 913, 914 & n.1 (11th Cir. 2005); McDowell v. Lemke,
737 F.3d 476, 483-84 (7th Cir. 2013); see also Wyzykowski v.
Department of Corr., 226 F.3d 1213, 1219 (11th Cir. 2000)
(Dubina, J., concurring specially).
The two affidavits Butler
now offers likewise suffer from serious reliability problems
because they come relatively late in the game, are not subject to
cross-examination, are made by Butler’s co-inmates in prison at
no direct legal cost to the themselves, and are of a hearsay
See Herrera v. Collins, 506 U.S. 390, 417-18 (1993);
Arthur v. Allen, 452 F.3d 1234, 1246 (11th Cir. 2006); Milton v.
Secretary, DOC, 347 F. App’x 528, 531 (11th Cir. 2009); Ray v.
Mitchem, 272 F. App’x 807, 810-11 (11th Cir. 2008).
Moore and Brock’s affidavits are vague as it might relate to
establishing specifically that Butler is not guilty of any
offense to which he pled guilty.
Indeed, those affidavits appear
to concern only the solicitation offense that Butler was alleged
to have committed while in the Marion County Jail, for which he
was indicted in October 2011.
Butler’s own allegations would
seem to suggest, however, that that solicitation offense occurred
after he had been arrested on prior, separate charges of
solicitation to commit murder, which became the subject of the
June 2011 indictment.
At the very least, the affidavits of Moore
and Brock do not on their face clearly absolve Butler of the
solicitation offenses from the June 2011 indictment to which he
also pled guilty.
Finally, the court would note that it would
appear that the State dismissed nine of the twelve counts
contained in the June 2011 indictment as part of a plea bargain.
Butler cannot open a gateway to consideration of time barred
claims absent a showing that he is actually innocent of such
charges foregone by the prosecution.
See Bousley, 523 U.S. at
The court concludes that Butler is not entitled to relief
under Rule 59(e), so he is not due to be granted the right to
amend his habeas petition.
Butler has also filed an application for leave to proceed
IFP on appeal.
The court hereby certifies, however, that the
appeal is not taken in good faith.
See 28 U.S.C. § 1915(a)(3).
Thus, Butler’s IFP motion is due to be denied.
Of course, Butler
is free to renew such application in the court of appeals should
he desire to do so.
See FED. R. APP. P. 24.
Also, under 28 U.S.C. § 2253(c)(1), a certificate of
appealability (“COA”) is required to appeal a “final order”
denying relief in a § 2254 habeas action.
Under Rule 11 of the
RULES GOVERNING § 2254 CASES, a district court is to issue or deny a
COA when it enters a final order adverse to a petitioner. The
Eleventh Circuit has recognized that, in § 2254 habeas cases, an
order denying a motion under FED. R. CIV. P.
order” for purposes of COA requirements.
59(e) is a “final
Perez v. Secretary,
Fla. DOC, 711 F.3d 1263, 1264 (11th Cir. 2013).
It is thus
appropriate also to address at this time whether Butler might be
entitled to a COA as it relates to the denial of his instant
motions treated as seeking relief under Rule 59(e).
consideration, the court concludes that a COA is due to be denied
because neither his habeas petition nor his instant post-judgment
motions present issues that are debatable among jurists of
See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Butler may also revisit this issue in the Eleventh Circuit.
FED. R. APP. P. 22(b).
In conclusion, the court rules as follows: (1) Butler’s
motion “to vacate, set aside and hold for naught” the court’s
final order (Doc. 12), treated as motion to alter or amend the
judgment pursuant to FED. R. CIV. P.
59(e), is due to be DENIED;
(2) Butler’S motion for leave to amend his habeas petition (Doc.
12) is due to be DENIED; (3) his motion for leave to proceed IFP
on appeal (Doc. 14) is due to be DENIED; and (4) a certificate of
appealability under § 2253 is also due to be DENIED.
A separate final order will be entered.
DONE, this 10th day of June, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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