Butler v. USA
Filing
3
ORDER DENYING PETITIONER VERNON BUTLERS MOTION TO VACATE, SETASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255. Signed by JUDGE HELEN GILLMOR on 2/13/14. (gab, )CERTIFICATE OF SERVICEParticipants registere d to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VERNON BUTLER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Cr. No. 10-00880 HG-01
Cv. No. 13-00387 HG-RLP
ORDER DENYING PETITIONER VERNON BUTLER’S MOTION TO VACATE, SET
ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (ECF NO.
92)
On July 26, 2013, Petitioner Vernon Butler filed a Motion to
Vacate, Set Aside or Correct Sentence (ECF No. 92), pursuant to
28 U.S.C. § 2255.
Petitioner challenges his sentence of 200
months imprisonment.
Petitioner Butler’s Request for Liberal Construction is
GRANTED.
Petitioner Butler’s Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255(f)(3) (ECF No. 92)
is DENIED, as untimely and lacking in merit.
request for an evidentiary hearing is DENIED.
Petitioner Butler’s
Petitioner
Butler’s request for appointment of counsel is DENIED.
Petitioner’s request for a Certificate of Appealability is
DENIED.
1
BACKGROUND
On December 15, 2010, an Indictment was filed, charging
Petitioner Vernon Butler, and one co-defendant, with: Count 1:
conspiracy to distribute, and to possess with intent to
distribute, in excess of 50 grams of methamphetamine, in
violation of 21 U.S.C. §§ 846, 841(a)(1); Count 2: aiding and
abetting the distribution of 50 grams or more of methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18
U.S.C. § 2; and Count 3: aiding and abetting the possession with
intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. §
2.
(ECF No. 10).
On August 3, 2011, the Government filed a sentencing
enhancement notice pursuant to 21 U.S.C. § 851, alleging
Petitioner Vernon Butler was subject to a mandatory minimum
sentence of twenty years imprisonment.
(ECF No. 50).
On December 14, 2011, Petitioner Vernon Butler pleaded
guilty before the Magistrate Judge on all three counts in the
Indictment. (ECF No. 62).
As part of the plea agreement, the
Government withdrew the sentencing enhancement notice pursuant to
21 U.S.C. § 851.
(ECF No. 63).
On January 5, 2012, the Court accepted the plea of guilty
entered before the Magistrate Judge and adjudged Petitioner
Vernon Butler guilty.
(ECF No. 67).
2
On April 11, 2012, Petitioner Vernon Butler filed an
Objection to the Draft Presentence Report that recommended a
four-level enhancement pursuant to U.S. Sentencing Guidelines §
3B1.1(a).
(ECF No. 82).
On April 17, 2012, the Government filed a Response to
Petitioner Butler’s Objection to the Draft Presentence Report.
(ECF No. 84).
On April 18, 2012, Petitioner Vernon Butler was sentenced to
200 months imprisonment.
(ECF No. 85).
On April 23, 2012, Judgment was entered against Petitioner
Butler. (ECF No. 86).
Petitioner Butler did not file an appeal.
On July 26, 2013, approximately fifteen months after the
Judgment was entered, Petitioner Vernon Butler filed a Motion to
Vacate, Set Aside or Correct Sentence, pursuant to Title 28
U.S.C. § 2255(f)(3). (ECF No. 92).
The Section 2255 Motion
argues that the Court erred in applying the Sentencing Guidelines
and asserts a claim for ineffective assistance of counsel for
failure to accurately advise Petitioner of his possible sentence.
On the same date, Petitioner Butler filed a document
entitled “Amend to Points of Authority Memorandum of Law.”
(ECF
No. 91).
On July 31, 2013, the Court issued a Minute Order, setting a
briefing schedule for the Section 2255 Motion. (ECF No. 93).
3
On September 18, 2013, the Government filed a Response in
Opposition to the Section 2255 Motion. (ECF No. 98).
On November 1, 2013, Petitioner Butler filed a Motion for
Extension of Time to Reply.
(ECF No. 99).
On November 5, 2013, the Court issued a Minute Order,
granting Petitioner Butler’s Motion for Extension of Time to
Reply and extending the deadline to file a reply until December
2, 2013.
(ECF No. 100).
On November 25, 2013, Petitioner Butler filed a Reply to the
Government’s Response.
(ECF No. 101).
DISCUSSION
Petitioner Butler argues that the Court erred in enhancing
his sentence by applying U.S. Sentencing Guideline § 3B1.1(a) to
find that he “was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive.”
(ECF No. 90 at pp. 6-7).
According to Petitioner, his attorneys provided ineffective
assistance of counsel because the possibility of receiving a
four-level sentence enhancement pursuant to Sentencing Guideline
§ 3B1.1(a) was never explained to him during his plea
negotiations.
(Id.)
Petitioner also claims that he received a
higher sentence than he expected based on his defense counsels’
representations.
(Id.)
Petitioner Butler’s claims are untimely
and without merit.
4
I.
PETITIONER’S FILINGS SHALL BE CONSTRUED LIBERALLY
Petitioner Butler requests that the Court construe his
filings liberally, as he is proceeding pro se.
(Petitioner’s
Reply, ECF No. 101 at pp. 1-2).
The Ninth Circuit Appellate Court has recognized that a pro
se petitioner’s filings should be construed liberally in a habeas
proceeding.
Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008).
Petitioner’s Request for Liberal Construction is GRANTED.
II.
PETITIONER’S SECTION 2255 MOTION IS TIME-BARRED
The Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2255,1 provides a one-year limitation period for
filing a petition for habeas corpus relief (“a Section 2255
Motion”).
The limitation period for a Section 2255 Motion runs
from the date on which a judgment of conviction becomes final,
unless an alternative start date is established by a condition
set forth in the statute.
28 U.S.C. § 2255(f).
The statute
provides:
The one-year limitations period for filing a Section
2255 Motion runs from the latest of:
(1) the date on which the judgment of conviction
becomes final;
1
The AEDPA is codified as 28 U.S.C. §§ 2241 through 2255
and 28 U.S.C. §§ 2261 through 2266. Habeas relief sought by
federal prisoners is governed by 28 U.S.C. § 2255.
5
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
Equitable tolling may apply to the AEDPA’s
one-year statute of limitations in limited circumstances.
United
States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011).
A.
Petitioner Butler’s Judgment of Conviction Became
Final on May 7, 2012
On April 23, 2012, Judgment was entered against Petitioner
Vernon Butler.
appeal.
(ECF No. 86).
Petitioner Butler did not file an
On May 7, 2012, fourteen days after Judgment was
entered, Petitioner Butler’s conviction became final.
Fed. R.
App. P. 4(b); Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012)
(finding that a conviction becomes final at the expiration of the
time for seeking direct review).
Petitioner Butler’s conviction became final on May 7, 2012,
because he did not file a direct appeal contesting his conviction
with the United States Court of Appeals for the Ninth Circuit.
Fed. R. App. P. 4(b); see Moshier v. United States, 402 F.3d 116,
6
118 (2d Cir. 2005) (holding that for Section 2255 motions, an
unappealed federal criminal judgment becomes final when the time
for filing a direct appeal expires).
Petitioner Butler argues that his conviction did not become
final until August 7, 2012.
(ECF No. 101).
Petitioner Butler
relies on a theory that a conviction is not final until the 90day period for seeking certiorari from the United States Supreme
Court lapses.
Sup.Ct. R. 13.
In Clay v. United States, the United States Supreme Court
held that a judgment of conviction becomes final when the time
expires for filing a petition for certiorari contesting the
appellate court’s affirmation of the conviction.
523 (2003).
case.
537 U.S. 522,
Petitioner Butler never filed an appeal in this
The holding in Clay is distinguishable from Petitioner
Butler’s case because the petitioner in Clay filed a timely
appeal with the U.S. Circuit Court of Appeals.
See id.
The 90-
day certiorari period is not applicable to Petitioner Butler’s
case to determine when his conviction became final.
See United
States v. Plascencia, 537 F.3d 385, 389 (5th Cir. 2008) (finding
that a federal prisoner is not entitled to the benefit of the 90day period for seeking certiorari review in the U.S. Supreme
Court when he first failed to file an effective notice of appeal
with the circuit court).
7
Petitioner Butler does not raise a claim for equitable
tolling.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Absent
some alternative start date, Defendant’s time for filing a
Section 2255 Motion expired on or about May 7, 2013.
Petitioner filed his Section 2255 Motion on July 26, 2013,
approximately eleven weeks after the limitations period expired
on May 7, 2013.
Petitioner Butler’s Section 2255 Motion is
untimely.
B.
The Decision in Alleyne v. United States Does Not
Render Petitioner Butler’s Section 2255 Motion Timely
A Section 2255 Motion asserting a newly recognized
constitutional right is timely if it is filed within one year of
the date on which the newly recognized constitutional right was
initially recognized by the Supreme Court, and if that new right
is retroactively applicable to cases on collateral review.
28
U.S.C. § 2255(f); Dodd v. United States, 545 U.S. 353, 358
(2005).
Retroactivity is determined by application of the test set
forth in Teague v. Lane, 489 U.S. 288, 310 (1989).
In general, a
new rule of law decided after a defendant’s conviction becomes
final may not be applied to the defendant’s case on collateral
review.
Id.
There are two exceptions to the general rule of
non-retroactivity: (1) new rules that place an entire category of
primary conduct beyond the reach of the criminal law, or new
8
rules that prohibit imposition of a certain type of punishment
for a class or defendants because of their status or offense; or
(2) new watershed rules of criminal procedure that are necessary
to the fundamental fairness of the criminal proceeding.
Beard v.
Banks, 524 U.S. 406, 416-17 (2004).
Petitioner Butler relies on the recent United States Supreme
Court decision in Alleyne v. United States, 133 S.Ct. 2151, 2158
(2013) in his Section 2255 Motion.
2-3, 11, ECF No. 92).
(Section 2255 Motion at pp.
In Alleyne, the Supreme Court extended the
holding announced in Apprendi v. New Jersey, 530 U.S. 466 (2000)
and held that “[a]ny fact that, by law, increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt.”
133 S.Ct. at 2155.
Petitioner
claims that Alleyne is a “new rule” that renders his Section 2255
Motion timely.
The holding in Alleyne does not apply to Petitioner Butler’s
case.
In Alleyne, the Supreme Court held that a jury must find
beyond a reasonable doubt any fact that increases a minimum
statutory penalty.
133 S.Ct. at 2158.
guilty and elected not to go to trial.
Petitioner Butler plead
Petitioner admitted to
the elements of his conviction when he plead guilty.
(Government’s Exhibit C).
Alleyne applies specifically to jury
trials and it is unclear the extent, if any, the holding applies
to guilty pleas.
9
Petitioner claims that the Court erred in applying the
Sentencing Guidelines by enhancing his sentence based on his role
in the conspiracy.
The Supreme Court in Alleyne explained that
its holding “does not mean that any fact which influences
judicial discretion must be found by a jury.”
Id. at 2163.
Alleyne does not stand for the proposition that factors elevating
advisory guideline calculations must be proved to a jury beyond a
reasonable doubt or admitted in a plea colloquy.
Id.; see United
States v. Peters, 2013 WL 5492913 at *1 (D. Mont. October 1,
2013); United States v. Booker, 543 U.S. 220, 226 (2005).
Alleyne did not overrule Booker, 543 U.S. at 226, which
permits sentencing courts to make factual findings that increase
a defendant’s Sentencing Guidelines range, as long as the
Guidelines are treated as advisory.
The sentence enhancement
applied in this case pursuant to U.S. Sentencing Guidelines §
3B1.1(a) did not change the statutory mandatory minimum sentence
and was treated as advisory.
The holding in Alleyne does not
apply to Petitioner Butler’s case.
Petitioner Butler has not pointed to any case or
circumstance, as set forth in 28 U.S.C. §
2255(f), that resets
the one-year statute of limitations or otherwise provides support
for the Court to rule on the merits of his habeas claim.
Petitioner Butler’s time for filing a Section 2255 Motion expired
10
on or about May 7, 2013.
Petitioner Butler’s Section 2255 Motion
is time-barred.
III. PETITIONER WAIVED HIS RIGHT TO APPEAL AND TO COLLATERALLY
ATTACK HIS SENTENCE
A criminal defendant may waive his or her right to appeal.
United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000).
A
defendant may also waive the right to bring a collateral attack.
United States v. Leniear, 574 F.3d 668, 672 n.3 (9th Cir. 2009);
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).
Such waivers are generally enforceable when they are made
knowingly and voluntarily and are part of a negotiated plea
agreement, and do not violate public policy.
The enforcement of
a waiver in a valid plea agreement preserves the finality of the
judgment and sentence imposed.
Anglin, 215 F.3d at 1066.
On December 14, 2011, Petitioner Butler pled guilty to all
three counts in the Indictment, pursuant to a Plea Agreement.
(ECF No. 62).
Petitioner’s signed Plea Agreement provides:
10. The Defendant is aware that he has the right to
appeal the sentence imposed under Title 18, United
States Code, Section 3742(a). However, in exchange for
the concessions made by the prosecution in this
Agreement, Defendant knowingly and voluntarily waives
the right to appeal his conviction and any sentence
within the maximum provided in the statute of
conviction or the manner in which that sentence was
determined on any grounds whatsoever, including any
order of restitution, and the manner in which that
sentence was determined.
a.
The Defendant also waives his right to
challenge his sentence or the manner in which
11
it was determined in any collateral attack,
including, but not limited to, a motion
brought under Title 28, United States Code,
Section 2255, subject only to the exception
that the Defendant may make such a challenge
based on a claim of ineffective assistance of
counsel.
b.
11.
The prosecution retains its right to appeal
the sentence and the manner in which it was
determined on any of the grounds stated in
Title 18, United States Code, Section
3742(b).
The Defendant understands that the District Court
in imposing sentence will consider the provisions
of the Sentencing Guidelines. The Defendant
further agrees that there is no promise or
guarantee of the applicability or nonapplicability of any Guideline or any portion
thereof, notwithstanding any representations or
predictions from any source.
(Plea Agreement at ¶¶ 10-11, ECF No. 66).
Petitioner Butler was sentenced to 200 months imprisonment,
well below the statutory maximum of life imprisonment.
86).
(ECF No.
Petitioner Butler unambiguously waived his right to
challenge a sentence that was within the statutory maximum or the
manner in which it was determined, including a sentence that the
defendant perceives to be an incorrect application of the
Sentencing Guidelines.
624 (9th Cir. 2007).
United States v. Bibler, 495 F.3d 621,
The record reflects that Petitioner Butler
entered into the plea agreement knowingly and voluntarily, and
his sentence is consistent with the terms of the plea agreement.
(Government’s Response Exs. B, C at pp. 11-13, ECF No. 98);
United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000).
12
Petitioner Butler unambiguously waived his right to argue on
direct appeal or collateral attack the non-applicability of any
of the Sentencing Guidelines.
United States v. Nunez, 223 F.3d
956, 958-59 (9th Cir. 2000); Longa v. United States, No. 0700107, 2011 WL 3882846, at *2-3 (D. Haw. Sept. 2,
2011)(defendant’s waiver of his right to pursue a collateral
attack in his plea agreement barred his claim for improper
application of Section 4A1.3 of the U.S. Sentencing Guidelines).
Petitioner Butler’s Section 2255 Motion is barred by his
waiver in his Plea Agreement, except for his ability to lodge a
challenge based on a claim of ineffective assistance of counsel.
IV.
PETITIONER’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM LACKS
MERIT
Petitioner is not entitled to post-conviction relief
pursuant to 28 U.S.C. § 2255 based on ineffective assistance of
counsel.
An ineffective assistance of counsel claim requires a
petitioner to show (1) that counsel’s representation fell below
an objective standard of reasonableness, and (2) that there was
prejudice because there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.
668, 694 (1984).
Strickland v. Washington, 466 U.S.
A petitioner must overcome the strong
presumption that a defense counsel rendered adequate assistance.
Jones v. Ryan, 583 F.3d 626, 637-38 (9th Cir. 2009).
13
A.
Petitioner Butler was Not Prejudiced by his
Defense Counsels’ Representation
A Section 2255 Motion based on ineffective assistance of
counsel fails unless the petitioner shows that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694.
A reasonable probability is a
probability sufficient to undermine confidence in the outcome and
the fundamental fairness of the result.
Lockhart v. Fretwell,
506 U.S. 364 (1993).
Petitioner Butler claims his defense counsels misinformed
him about his potential sentence during plea negotiations.
(Section 2255 Motion, ECF No. 92 at pp. 4-7, 11; Reply, ECF No.
101 at pp. 8-17).
The record demonstrates that Petitioner’s
defense counsel, W. Michael Mayock, sent Petitioner Butler a
letter during plea negotiations.
(ECF No. 92-1).
The letter
states that if Petitioner Butler accepted a plea “his sentence
would run in the 21-27 year range,” but the letter explained that
based on his negotiations the Government “could withdraw some
special information” to reduce the sentence to “14-17 ½ years.”
Id.
Petitioner received a sentence of 200 months imprisonment,
which is equivalent to 16 years and 8 months.
(ECF No. 86).
The
sentence imposed was within the range predicted by Petitioner’s
defense counsels.
Petitioner Butler fails to show that he was
14
prejudiced on account of his defense counsels’ prediction.
Petitioner Butler received a sentence within the range of the
representations made by his attorneys.
Petitioner Butler arguments related to his defense counsels’
representations about his potential sentence do not establish a
claim for relief.
Petitioner Butler was not prejudiced by his
defense counsels when he received a sentence within the range
predicted by his counsels.
Petitioner Butler fails to
demonstrate that he was prejudiced by his counsels’
representation.
B.
Strickland, 466 U.S. at 694.
Petitioner Butler’s Defense Counsels’
Representation Did Not Fall Below an Objective
Standard of Reasonableness
A Section 2255 Motion based on ineffective assistance of
counsel also fails unless the defendant shows that former defense
counsel’s performance fell below an objective standard of
reasonableness.
Strickland, 466 U.S. at 690.
The petitioner
must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable or professional
judgment.
Id.
The court must determine whether in light of all
the circumstances, the identified acts or omissions were outside
the range of professionally competent assistance.
Id.
Petitioner Butler argues that his defense counsels’
performance fell below an objective standard of reasonableness
15
because they misinformed him about his potential sentence and the
applicability of the Sentencing Guidelines.
Petitioner Butler’s counsels’ representations during plea
negotiations did not fall below an objective standard of
reasonableness.
Petitioner’s counsel, Lars Isaacson, submitted a
Declaration, stating that “[n]umerous discussions were held with
Mr. Butler about his possible sentencing range, but no guarantees
were made as to the calculation that pretrial services would make
and the ultimate sentence imposed.”
(Government’s Response Ex.
G, Declaration of Lars Robert Isaacson at ¶ 4, ECF No. 98).
Defendant’s other defense counsel, W. Michael Mayock,
submitted a Declaration, asserting that he discussed “numerous
issues with Mr. Butler, including potential sentencing
guidelines, possible arguments he could assert and criminal
history categories.”
(Government’s Response Ex. G, Declaration
of W. Michael Mayock at ¶ 3, ECF No. 98).
The record reflects that although Defendant’s defense
counsels may have discussed potential sentence ranges with him,
“no guarantees were made as to the calculation that pretrial
services would make and the ultimate sentence imposed.”
(Government’s Response Ex. G, Declaration of Lars Robert Isaacson
at ¶ 4, ECF No. 98).
There is no requirement that the defendant
be informed of the applicable offense level, criminal history
category, or potential enhancements he may receive under the
16
Sentencing Guidelines before entering a plea.
See United States
v. Turner, 881 F.2d 684, 687 (9th Cir. 1989), overruled on other
grounds, United States v. Rodriguez-Razo, 962 F.2d 1418 (9th Cir.
1992).
Even an erroneous prediction by the defendant’s attorney,
which is not the case here, regarding his possible sentence does
not render assistance ineffective when the district court informs
the defendant to the potential consequences of a guilty plea.
Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir. 2007); United
States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990); Shah v.
United States, 878 F.2d 1156, 1162 (9th Cir. 1989).
The Magistrate Judge reviewed the Plea Agreement with
Petitioner Butler to verify that he fully understood the terms
before Petitioner pled guilty. (Government’s Response Ex. C at
pp. 9-10, ECF No. 98).
The Magistrate Judge informed Petitioner
Butler that he faced “a term of up to life imprisonment with a
mandatory minimum term if incarceration of 10 years.”
10.
Id. at 9-
Petitioner Butler stated that he understood the possible
penalties he would face for pleading guilty.
Id.
The Magistrate Judge informed Petitioner Butler about the
Sentencing Guidelines and that his sentence could vary from any
estimates that were provided to him by his attorneys.
At the
hearing on December 14, 2011, the Magistrate Judge stated:
17
The Court:
The United States Sentencing Commission
has issued guidelines for judges to use
in determining the sentence in a
criminal case. While judges are not
bound to apply the guidelines, judges
must consult the guidelines and take
them into account in determining their
sentence. Mr. Butler, have you and your
attorneys talked about how the
guidelines might apply to your case?
Petitioner:
We have.
The Court:
Do you understand that the Court will
not be able to determine the Advisory
Guideline sentence for your case until
after the presentence report has been
completed and you and the government
have had an opportunity to challenge the
reported facts and the application of
the guidelines recommended by the
probation officer, and that the sentence
imposed may be different from any
estimates your attorney may have given
you?
Petitioner:
I do understand that, Your Honor.
The Court:
Do you also understand that after your
Advisory Guideline range has been
determined, the Court has the discretion
and authority to depart from the
guidelines and to impose a sentence that
is more severe or less severe than the
sentence indicated in the Advisory
Sentencing Guideline range?
Petitioner:
Yes, sir.
The Court:
Do you understand that Judge Gillmor
will also determine your sentence based
on admissions that you make at this
hearing?
Petitioner:
Yes, sir.
The Court:
Do you understand that you do not have
to admit to factual matters in dispute,
18
but if you do admit to certain facts at
this hearing, Judge Gillmor will rely on
your admissions at the time of
sentencing and that your admissions may
increase your sentence?
Petitioner:
Yes, sir.
The Court:
If the sentence is more severe than you
expected, you will still be bound by
your plea. Even if you do not like the
sentence imposed, you will not be able
to withdraw your plea. The time to make
that decision is now. Do you understand
that?
Petitioner:
Yes, sir.
(Government’s Response Ex. C at pp. 11-13, ECF No. 98).
At the Sentencing Hearing on April 18, 2012, Petitioner
Butler informed the District Court Judge that he did not fully
understand the Sentencing Guideline calculations contained in the
Presentence Report.
ECF No. 98).
(Government’s Response Ex. E at pp. 3-12,
Petitioner Butler indicated that he expected his
sentence to be “between 14 and 17” years based on the Plea
Agreement.
At the hearing, Petitioner stated:
Petitioner:
I got a letter from my attorney that
advised me to sign for the deal because
he said he had talked to the prosecutor
and it said on there that it went down
from 21 to 27 to 14 to 17.
The Court:
So that’s what your attorney told you.
Petitioner:
Yes, ma’am.
...
19
The Court:
Mr. Butler, I don’t want to sentence
you, unless you understand everything
that is happening. And Mr. Song raises
a point, and the point is one of the
things that I say in taking a plea on
occasion with an issue like this is, if
anybody has made any representations to
you as to what your sentence will be,
while they may be experienced attorneys,
that is an estimate, and it is up to the
judge to impose a sentence, and it can
be higher or lower than what you were
advised. So the question is do you feel
at this point that this is something
that you misunderstood and entered your
plea because of that representation?
Petitioner:
I definitely entered my plea based on
that representation at that time, yes,
ma’am.
The Court:
Okay.
Petitioner:
However –-
The Court:
Yes.
Petitioner:
–-Your Honor, I don’t want to come back
again. I’d rather get sentenced today
because I just –- emotionally, I can’t
come back again. I rather just do it
today.
The Court:
You’re facing a very long sentence, Mr.
Butler, and I’m taking this time because
you are facing a very long sentence, and
I don’t want you to enter into this
unless you are satisfied that you’ve had
good representation and that you
understand what is happening here today.
Mr. Mayock:
May I have a moment, Your Honor.
The Court:
Yes.
(Counsel and Petitioner conferring.)
20
Mr. Mayock:
Your Honor, Mr. Butler is ready to
proceed. I think we’ve explained the
situation to him so that he understands
that there are options that exist when
you have a plea agreement. It’s not
just absolutely rock solid. And if the
Probation Office comes up with
information up or down, that’s something
that gets considered. We talked to him
about the fact that that would be
considered, that that is something that
has to be expected. I’ve explained it
to him, I believe that he understands
it, and that Mr. Butler is ready to
proceed at this time.
The Court:
Thank you, Mr. Mayock. Mr. Butler –you may be seated. Mr. Butler, my
question remains the same. Do you feel
that you have been well-represented and
that you understand what is going on and
you’ve ready to proceed?
Petitioner:
Yes, ma’am.
The Court:
You’re sure. Because we can put this
off till tomorrow. We can put it off
for a month.
Petitioner:
I’m ready to provide.
The Court:
You’re sure. And you feel –- the answer
to my question is with respect to those
two issues, that you feel you’ve been
properly represented and you understand
what is happening with respect to the
plea agreement, the increase with
respect to your role in the offense?
Petitioner:
Yes, ma’am.
The Court:
Okay.
I’m ready to proceed.
Thank you.
(Government’s Response Ex. E, pp. 10-13, ECF No. 98).
Petitioner’s defense counsels’ prediction was not erroneous.
The representation of Petitioner clearly did not fall below an
21
objectively reasonable standard of representation.
Strickland,
466 U.S. at 690.
Petitioner Butler asserts that he also received ineffective
assistance of counsel because his defense counsels did not advise
him that he could receive a 4-level sentence increase for his
role in the conspiracy.
(Section 2255 Motion, ECF No. 92 at pp.
4-7, 11; Reply, ECF No. 101 at pp. 8-17).
Petitioner’s defense counsels objected to the Court’s 4level sentence enhancement for Petitioner’s role in the
conspiracy during sentencing.
(ECF No. 79 at pp. 5-66).
Petitioner Butler’s counsels also argued that the 4-level
increase should not apply during the sentencing hearing.
(Government’s Response Ex. E at pp. 15-20, ECF No. 98).
The
Court considered the arguments of Petitioner’s counsels regarding
sentencing but did not agree.
The counsels’ actions were
reasonable and appropriate.
Petitioner has not met either prong of the Strickland test.
There is no evidence of a lack of competent legal assistance to
Petitioner, nor was Petitioner prejudiced by any of counsels’
actions.
Petitioner Butler is not entitled to post-conviction relief
pursuant to 28 U.S.C. § 2255.
V.
PETITIONER IS NOT ENTITLED TO AN EVIDENTIARY HEARING
22
An evidentiary hearing in a Section 2255 action is required
“[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b).
An evidentiary hearing is not required if a prisoner’s
allegations, “when viewed against the record, do not state a
claim for relief or are so palpably incredible or patently
frivolous as to warrant summary dismissal.”
United States v.
Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003)(citing United States
v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)).
The Court lacks jurisdiction over Petitioner’s Section 2255
Motion, as it is untimely.
The record also conclusively shows
that Petitioner’s claims for ineffective assistance of counsel
lack merit.
Petitioner is not entitled to an evidentiary
hearing.
Petitioner’s request for an evidentiary hearing is DENIED.
VI.
PETITIONER IS NOT ENTITLED TO APPOINTED COUNSEL
Petitioner Butler requests appointment of counsel to further
assist him in advancing his claim for relief.
(ECF No. 101 at
pp. 18).
The right to counsel guaranteed by the Sixth Amendment of
the United States Constitution does not apply in state or federal
prisoners’ habeas corpus actions.
467, 495 (1991).
23
McCleskey v. Zant, 499 U.S.
A district court is authorized to appoint counsel in a
Section 2255 proceeding, pursuant to 18 U.S.C. § 3006A, when (1)
the petitioner is financially eligible for appointment of counsel
and (2) “the court determines that the interests of justice so
require.”
18 U.S.C § 3006A(a)(2)(B).
The court’s determination
focuses on the prisoner’s ability to articulate his claims in
light of the complexity of the legal issues and likelihood of
success on the merits of the petition.
F.2d 952, 954 (9th Cir. 1983).
Weygandt v. Look, 718
When a court determines that an
evidentiary hearing will be necessary on a Section 2255 motion,
the court must appoint counsel for a financially eligible
petitioner.
United States v. Duarte-Higareda, 68 F.3d 369, 370
(9th Cir. 1995)(citing Rule 8(c) of the Federal Rules Governing
Section 2255 Proceedings).
Petitioner’s claims are time-barred and lacking in merit,
and do not require an evidentiary hearing.
Appointment of
counsel for Petitioner is not appropriate.
Petitioner’s request for appointment of counsel is DENIED.
VII. PETITIONER IS NOT ENTITLED TO A CERTIFICATE OF APPEALABILITY
AEDPA provides that a Certificate of Appealability may be
issued “only if the applicant has made a substantial showing of
the denial of a constitutional right”, 28 U.S.C. § 2253(c)(2).
“substantial” showing requires a prisoner to show that
“reasonable jurists could debate whether . . . the petition
24
A
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.”
Slack v. McDaniel, 529 U.S. 473, 483–84
(2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4
(1983)).
Petitioner Butler’s Section 2255 Motion has not made a
substantial showing that Petitioner was deprived of a
constitutional right.
Petitioner’s arguments are not supported
by the record and applicable law.
Reasonable jurists would not
debate the Court’s conclusion, and there is no reason to
encourage further proceedings.
Petitioner’s request for a Certificate of Appealability is
DENIED.
CONCLUSION
Petitioner Vernon Butler’s Request for Liberal Construction
is GRANTED.
Petitioner Butler’s Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 92) is
DENIED.
Petitioner Butler’s request for an evidentiary hearing
is DENIED.
Petitioner Butler’s request for appointment of
counsel is DENIED.
Petitioner’s request for a Certificate of
25
Appealability is DENIED.
IT IS SO ORDERED.
Dated: February 13, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
United States of America v. Vernon Butler; Cr. No. 10-00880 HG01; Cv. No. 13-00387 HG-RLP; ORDER DENYING PETITIONER VERNON
BUTLER’S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT
TO 28 U.S.C. § 2255 (ECF NO. 92).
26
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