Butts v. United States of America

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 14 ; Petitioner's motion for relief under § 2255 (Doc. 1) is denied. Denying 18 Petitioner's Motion for Certificate of Appealability. The Clerk shall terminate this action. Signed by Judge David G Campbell on 4/29/11. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CR05-1127 PHX DGC
CV10-2104-PHX-DGC

Paul Richard Butts,
Plaintiff/Respondent,

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ORDER

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vs.

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United States of America,

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Defendant/Movant.

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Petitioner Paul Richard Butts moves to vacate, set aside, or correct his sentence

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under 28 U.S.C. § 2255. Doc. 1. Magistrate Judge David K. Duncan filed a Report and

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Recommendation (“R&R”) that habeas relief and a certificate of appealability (“COA”)

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be denied. Doc. 14. Petitioner objects to the R&R’s findings and moves for a COA.

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Docs. 17, 18. Petitioner does not request oral argument. Docs. 17, 18. For the reasons

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that follow, the Court will accept the R&R and deny the motions.

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The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge in a habeas case.

See 28 U.S.C.

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§ 636(b)(1). The Court must undertake de novo review of those portions of the R&R to

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which specific objections are made. See § 636(b)(1)(c); Fed. R. Civ. P. 72(b); United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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Petitioner was convicted in federal court of possessing and distributing child

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pornography, and was sentenced to imprisonment for 28 years and 4 months. Doc. 14 at

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2. On direct appeal, Petitioner argued that the trial court improperly denied his motion to

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suppress evidence. Id. at 2:7-9 (citing United States v. Butts, 2009 WL 4884356 (9th Cir.

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2009)). The Ninth Circuit affirmed the trial court after de novo review. Id. Petitioner

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seeks to relitigate the matter by arguing, as his first ground for habeas relief, that the

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district judge violated his right to equal protection. Id. The R&R concluded that the

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matter cannot be relitigated on habeas review. Id. As to Petitioner’s second ground for

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relief – ineffective assistance of counsel at trial and on appeal – the R&R concluded that

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Petitioner failed to establish deficient performance and prejudice under Strickland v.

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Washington, 466 U.S. 668 (1984). Doc. 14 at 2. Petitioner objects that the R&R’s

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findings were frivolous and failed to respond to his arguments. Doc. 17. Although the

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objection is somewhat general, the Court will engage in de novo review of the R&R.

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United States v. Scrivner held that an issue raised and decided on direct appeal is

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binding on an appellate panel’s review of denial of habeas relief. 189 F.3d 825, 828 (9th

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Cir. 1999). Scrivner was decided under the “law of the case” doctrine. Id. The court

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also noted, in the context of a § 2255 petition, that Ninth Circuit law precludes

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relitigation of a matter adversely decided on direct appeal from a federal conviction. Id.

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at n.1 (citing United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985), and United States

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v. Currie, 589 F.2d 993, 995 (9th Cir. 1979)). Redd and Currie clearly hold that matters

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decided on direct appeal in a federal conviction cannot be collaterally attacked in a

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subsequent § 2255 proceeding. Redd, 759 F.2d at 701 (noting that petitioner “raised this

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precise claim in his direct appeal, [that] this court expressly rejected it[, and that] this

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claim cannot be the basis of a § 2255 motion” (citing Egger v. United States, 509 F.2d

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745, 748 (9th Cir. 1975))); Currie, 589 F.2d at 995 (noting that “[i]ssues disposed of on a

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previous direct appeal are not reviewable in a subsequent § 2255 proceeding” (citing

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Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972))).

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Petitioner argues that the trial court’s failure to suppress evidence violated his

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constitutional rights. Doc. 17. Petitioner raised this issue on direct appeal, and the Ninth

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Circuit ruled against him. Petitioner cites no retroactive change in the law. E.g., Redd,

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759 F.2d at 701; Currie, 589 F.2d at 995.
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Petitioner’s objection summarily addresses his second ground for relief by making

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the following statement: “The Strickland Standard has been proven with the Court’s own

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words, ‘You didn’t even put on any evidence.’” Doc. 17 at 4 (emphasis in original).

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This statement, cited without context or reference to the record, is insufficient to satisfy

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Strickland because a defense attorney’s decision not to put on evidence is not always

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deficient and prejudicial. See, e.g., Silva v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002)

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(“Given the strong possibility that the introduction of certain types of mitigating evidence

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by the defense could lead to damaging rebuttal evidence . . . , his counsel exercised

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reasonable judgment in refraining from introducing any evidence whatsoever during the

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penalty phase.”). Petitioner has failed adequately to object to the R&R on the ineffective

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assistance recommendation.

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The R&R recommends that a COA be denied. Doc. 14 at 3. Petitioner filed a

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motion requesting a COA, but does not make specific objections to the R&R’s

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recommendation. Doc. 18. The Court will accept the R&R and deny the COA. See

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§ 636(b)(1)(c); Fed. R. Civ. P. 72(b); Reyna-Tapia, 328 F.3d at 1121.

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IT IS ORDERED:

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1.

The R&R (Doc. 14) is accepted.

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2.

Petitioner’s motion for relief under § 2255 (Doc. 1) is denied.

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3.

Petitioner’s motion for a COA (Doc. 18) is denied.

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4.

The Clerk shall terminate this action.

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Dated this 29th day of April, 2011.

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