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)

Download PDF
    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CR05-1127 PHX DGC CV10-2104-PHX-DGC Paul Richard Butts, Plaintiff/Respondent, 10 ORDER 11 vs. 12 United States of America, 13 Defendant/Movant. 14 15 Petitioner Paul Richard Butts moves to vacate, set aside, or correct his sentence 16 under 28 U.S.C. § 2255. Doc. 1. Magistrate Judge David K. Duncan filed a Report and 17 Recommendation (“R&R”) that habeas relief and a certificate of appealability (“COA”) 18 be denied. Doc. 14. Petitioner objects to the R&R’s findings and moves for a COA. 19 Docs. 17, 18. Petitioner does not request oral argument. Docs. 17, 18. For the reasons 20 that follow, the Court will accept the R&R and deny the motions. 21 The Court may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. 23 § 636(b)(1). The Court must undertake de novo review of those portions of the R&R to 24 which specific objections are made. See § 636(b)(1)(c); Fed. R. Civ. P. 72(b); United 25 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 26 Petitioner was convicted in federal court of possessing and distributing child 27 pornography, and was sentenced to imprisonment for 28 years and 4 months. Doc. 14 at 28 2. On direct appeal, Petitioner argued that the trial court improperly denied his motion to     1 suppress evidence. Id. at 2:7-9 (citing United States v. Butts, 2009 WL 4884356 (9th Cir. 2 2009)). The Ninth Circuit affirmed the trial court after de novo review. Id. Petitioner 3 seeks to relitigate the matter by arguing, as his first ground for habeas relief, that the 4 district judge violated his right to equal protection. Id. The R&R concluded that the 5 matter cannot be relitigated on habeas review. Id. As to Petitioner’s second ground for 6 relief – ineffective assistance of counsel at trial and on appeal – the R&R concluded that 7 Petitioner failed to establish deficient performance and prejudice under Strickland v. 8 Washington, 466 U.S. 668 (1984). Doc. 14 at 2. Petitioner objects that the R&R’s 9 findings were frivolous and failed to respond to his arguments. Doc. 17. Although the 10 objection is somewhat general, the Court will engage in de novo review of the R&R. 11 United States v. Scrivner held that an issue raised and decided on direct appeal is 12 binding on an appellate panel’s review of denial of habeas relief. 189 F.3d 825, 828 (9th 13 Cir. 1999). Scrivner was decided under the “law of the case” doctrine. Id. The court 14 also noted, in the context of a § 2255 petition, that Ninth Circuit law precludes 15 relitigation of a matter adversely decided on direct appeal from a federal conviction. Id. 16 at n.1 (citing United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985), and United States 17 v. Currie, 589 F.2d 993, 995 (9th Cir. 1979)). Redd and Currie clearly hold that matters 18 decided on direct appeal in a federal conviction cannot be collaterally attacked in a 19 subsequent § 2255 proceeding. Redd, 759 F.2d at 701 (noting that petitioner “raised this 20 precise claim in his direct appeal, [that] this court expressly rejected it[, and that] this 21 claim cannot be the basis of a § 2255 motion” (citing Egger v. United States, 509 F.2d 22 745, 748 (9th Cir. 1975))); Currie, 589 F.2d at 995 (noting that “[i]ssues disposed of on a 23 previous direct appeal are not reviewable in a subsequent § 2255 proceeding” (citing 24 Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972))). 25 Petitioner argues that the trial court’s failure to suppress evidence violated his 26 constitutional rights. Doc. 17. Petitioner raised this issue on direct appeal, and the Ninth 27 Circuit ruled against him. Petitioner cites no retroactive change in the law. E.g., Redd, 28 759 F.2d at 701; Currie, 589 F.2d at 995. ‐ 2 ‐      1 Petitioner’s objection summarily addresses his second ground for relief by making 2 the following statement: “The Strickland Standard has been proven with the Court’s own 3 words, ‘You didn’t even put on any evidence.’” Doc. 17 at 4 (emphasis in original). 4 This statement, cited without context or reference to the record, is insufficient to satisfy 5 Strickland because a defense attorney’s decision not to put on evidence is not always 6 deficient and prejudicial. See, e.g., Silva v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002) 7 (“Given the strong possibility that the introduction of certain types of mitigating evidence 8 by the defense could lead to damaging rebuttal evidence . . . , his counsel exercised 9 reasonable judgment in refraining from introducing any evidence whatsoever during the 10 penalty phase.”). Petitioner has failed adequately to object to the R&R on the ineffective 11 assistance recommendation. 12 The R&R recommends that a COA be denied. Doc. 14 at 3. Petitioner filed a 13 motion requesting a COA, but does not make specific objections to the R&R’s 14 recommendation. Doc. 18. The Court will accept the R&R and deny the COA. See 15 § 636(b)(1)(c); Fed. R. Civ. P. 72(b); Reyna-Tapia, 328 F.3d at 1121. 16 IT IS ORDERED: 17 1. The R&R (Doc. 14) is accepted. 18 2. Petitioner’s motion for relief under § 2255 (Doc. 1) is denied. 19 3. Petitioner’s motion for a COA (Doc. 18) is denied. 20 4. The Clerk shall terminate this action. 21 Dated this 29th day of April, 2011. 22 23 24 25 26 27 28 ‐ 3 ‐ 

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?