Butler v. USA-2255

Filing 2

MEMORANDUM OPINION AND ORDER. Signed by Judge David A. Faber on 3/30/2016. (c/m 3/30/16 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHNNIE BUTLER
v.

CIVIL ACTION NO. DAF-12-3468
CRIMINAL NO. 1:08-00381-DAF-1

UNITED STATES OF AMERICA
MEMORANDUM OPINION AND ORDER
Pending before the court is Butler’s pro se “Motion to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody,” pursuant to 28 U.S.C. § 2255.

(ECF 564).

This matter

was originally assigned to Judge Ellen Lipton Hollander.

By

Order entered October 15, 2014, Judge Hollander denied Butler’s
motion as to the majority of his claims but held certain claims
regarding plea negotiations (Claims 8 and 12) in abeyance.
597).

(ECF

As to Claims 8 and 12, Judge Hollander sought to expand

the record and ordered the government to produce “any evidence it
may have regarding plea negotiations with Butler and/or his
counsel, and/or evidence pertaining to the government’s
contention that it would not offer a plea agreement to Butler
without a requirement of his cooperation.”

Id.

The government’s

response to that Order included an affidavit from the Honorable
George J. Hazel, a United States District Judge for the District
of Maryland and, therefore, one of Judge Hollander’s colleagues.
(ECF 611-1).

For this reason, Judge Hollander recused herself

from further consideration of the claims herein and the

undersigned was assigned to Mr. Butler’s case.

Having now

reviewed the remaining grounds asserted by Mr. Butler, his motion
under § 2255 is DENIED.
Discussion
Judge Hollander’s Memorandum Opinion of October 15, 2014
(ECF 596) provides a thorough account of the factual and
procedural background, as well as a discussion of the controlling
principles of law and standard of review.

For this reason, the

court has fully adopted her opinion herein.
With respect to the claims for which Judge Hollander
determined expansion of the record was necessary, she noted:
In Claim 8, Butler asserts that Saunders
[his attorney] was constitutionally deficient
because he failed to communicate to the
government Butler’s willingness to accept a
guilty plea on one of the four counts against
him, so long as the deal would not involve
cooperation. In his Memo, ECF 564-1 at 18-19,
Butler said: “Movant apprised counsel that he
could not cooperate . . . Yet counsel would not
negotiate . . . a plea void of cooperation or a
conditional plea. . . .” In Butler’s Affidavit,
ECF 564-6, at paragraph eight, Butler said: “I
told Saunders that I was not guilty of killing
anyone and could not cooperate, but would
possibly plead guilty to the drug charges.
Attorney Saunder[s] stated that that was
unacceptable even though he did not – to my
knowledge – confer with the AUSA during our
conversation[.]” And, in his Affidavit at
paragraph five, in response to Saunder’s advice
that Butler should cooperate, Butler said: “I
became frustrated and upset with counsel for
going against my specific wishes and trying to
have me be an informant.” Butler further asserts
that he suffered prejudice, stating: “Had counsel
properly advised movant of his plea options at
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the plea bargaining phase, and attacked the
prosecutorial misconduct in . . .the contentions
. . . stated [in the Memo] . . . there [is] no
way movant would have pled not guilty and
insisted on a trial.” Memo at 20.
In Claim 12, Butler argues: “Had counsel
provided the Movant with adequate and competent
legal advice [regarding the application of the
federal Sentencing Guidelines], the Movant would
have been amenable to plea negotiations resulting
in his guilty plea and a sentence short of Life
imprisonment without parole.” Memo at 34.
Further, Butler complains that Saunders did not
provide him with adequate information and advice
so as to enable him to make an “intelligent and
informed” decision whether to pursue plea
negotiations. . . .” Id. (Emphasis in original.)
Butler does not address whether different
advice regarding the Guidelines would have
changed his mind about whether to cooperate. See
Butler Aff. ¶ 8 (stating he would not cooperate).
Indeed, as set forth above, he has stated
unequivocally that he would not cooperate.
Claims 8 and 12 fail if it is true that
the government would not offer a plea for less
than life unless Butler agreed to cooperate.
Butler has said he would only “have been
amenable” to a plea “resulting in . . . a
sentence short of Life . . . .” Memo at 34.
And, he states in his sworn Affidavit that he
“told Saunders” that he “could not cooperate.”
Butler Aff. ¶ 8. Taking Butler at his word, his
assertions plainly demonstrate that he was not
amenable to a plea if it included any form of
cooperation with the government.
In his Affidavit, ECF 575-8, Saunders
states that “the government made it clear and Mr.
Butler was so advised that nothing less than a
life imprisonment plea was possible without
cooperation. And as Mr. Butler sets out,
cooperation was not something he was willing to
consider.” Saunders Aff. at 1. Saunders also
avers, id:

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I should also note that during the
pendency of this case Mr. Butler
became a suspect in a
kidnapping/torture/rape murder in
the state of Maryland (he was
subsequently convicted) which also
contributed to the government’s
adamant position regarding any
plea. Therefore counsel had no
room to negotiate any plea bargain
absent cooperation. Not
incidentally Mr. Butler asserted he
was innocent of the drug conspiracy
as well.
Saunders included in his Affidavit pages
of his own notes. E.g., id. at 2. One of these
images shows handwritten notes as follows: Δ not
interested in plea disc. Δ adamant that he did
not do murder; no way to deal w/ Gov, w/
[unintelligible] admit [unintelligible].” Id.
Presumably, this states that “defendant was not
interested in a plea discussion,” and “defendant
was adamant that he did not do [the] murder;
[there is] no way to deal with government without
[defendant’s being willing to] admit that [he
committed the alleged murder.]”
The government argues that, in any case,
Butler has failed to show prejudice. In its
Opposition at 13 n.2, ECF 575, the government
notes that Butler does not state, unequivocally,
that he would have pleaded guilty if the
government offered a deal that did not involve
cooperation. See also Memo at 20. Thus, it
argues, “the defendant does not even appear to be
claiming that he would have pleaded guilty to the
indictment had his counsel been effective.”
Opposition at 13, n.2. Moreover, it claims that
Butler would not plead if he had to cooperate,
and the government was unwilling to negotiate a
plea agreement without cooperation. Opposition
at 20. “Thus,” it concludes, “the defendant may
or may not wish now that he had pursued a plea,
but the Government seemed disinclined to enter
into any such agreement.” Id. (emphasis added).

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As I see it, Butler and Saunders have
submitted contradictory sworn statements as to
whether Saunders sought a plea deal for Butler
that did not include cooperation. Butler
complains that Saunders never approached the
government regarding a plea deal void of
cooperation. E.g., Butler Aff. ¶ 8. Saunders
seems to say that he did, and that the government
would agree to nothing less than life
imprisonment without cooperation. ECF 575-8,
Saunders Aff. at 1 (“[T]he government made it
clear and Mr. Butler was so advised that nothing
less than a life imprisonment plea was possible
without cooperation.”). This dispute concerns a
material fact, because Butler asserts that his
decision-making would have been different if a
plea deal without cooperation were possible, and
that he did not know if it were possible because
of counsel’s performance. ECF 564-1 at 23; ECF
575 at 20; see also Lafler, 132 S. Ct. at 1384.
Thus, it appears that, with regard to Butler’s
Sixth Amendment claim, Butler presents “disputed
material facts and a credibility determination is
necessary to resolve the issue.” Robertson, 219
F. App’x. at 286.
Moreover, the government has merely
asserted in its Memo that it insisted on
cooperation. See, e.g., Opposition at 20. The
government states: “Mr. Saunders’ affidavit
indicates that he spoke to the Government about a
possible plea deal, but that the Government was
adamant that a plea agreement include
cooperation.” Id. It adds: “Saunders further
indicates that serious state charges were also
pending, which made a plea deal particularly
difficult.” Id. at 12. The government later
asserts that it “seemed disinclined to enter into
any such agreement.” Id. at 20 (emphasis added).
In any event, it has not corroborated Saunders’s
assertion with evidence.
Noticeably absent is any affidavit or
document from the government confirming that it
refused to offer a plea deal to Butler void of
cooperation, or that, without cooperation, it
would only offer a plea to life imprisonment. If
either circumstance were so, Butler could show no
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prejudice resulting from Saunders’s efforts
regarding Claims 8 or 12, whatever they entailed.
But, in its Opposition, the government relies
wholly on its own assertions and Saunders’s
Affidavit to support its argument that “trial
counsel was not ineffective in relation to plea
bargaining.” ECF 575 at 11.
The Court recognizes that the prosecutor
now assigned to this case did not handle the
pretrial or trial proceedings. However, there is
no indication as to whether the government has
searched its records as to this issue.
As discussed above, § 2255 requires that a
court hold a hearing whenever a material fact is
in dispute and resolution hinges on a credibility
determination. Raines, 423 F.2d at 430:
Witherspoon, 231 F.3d at 926-27; Robertson, 219
F. App’x. at 286. However, a hearing may be
avoided if factual disputes can be resolved on
the record alone. See Dyess, 730 F.3d at 359;
Rule 4(b) of the § 2255 Rules. Toward that end,
I may also seek to expand the record before
deciding to hold a hearing. Pender, 514 F. App’x
at 361; Rule 7(a) of the § 2255 Rules. I believe
that, at this juncture, it is appropriate to
attempt to expand the record.
In light of the foregoing, the government
is hereby ordered to produce, within 30 days from
the date of the docketing of the Order
accompanying this Opinion, any evidence it may
have regarding plea negotiations or attesting to
the government’s position on cooperation in
Butler’s case. See Rule 7 of the § 2255 Rules.
ECF 596 at pp. 49-53.
As noted above, in responding to Judge Hollander’s Order
to Produce, the government submitted the Declaration of George J.
Hazel dated January 14, 2015.

(ECF 611-1).

Judge Hazel formerly

served as an Assistant United States Attorney for the District of
Maryland from 2008 to 2010.

See id. at ¶ 1.
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In that capacity,

AUSA Hazel “served as the lead prosecutor in the prosecution of
Johnnie Butler and his co-conspirators. . . .”

Id. at ¶ 2.

Regarding his trial strategy and plea negotiations between the
government and Butler, Hazel stated:
3. Mr. Butler was the head of a violent
cocaine and heroin distribution organization
operating in Baltimore City. In the course of
the government’s investigation, it became clear
that Mr. Butler was responsible for at least two
murders, and that, as head of the drug
distribution organization, he was by far the most
culpable of any of the ten co-conspirators who
were indicted in the Criminal Case. My
prosecutorial strategy in the Criminal Case was
to obtain the cooperation of lower-level members
of the organization through plea agreements, and
to use their truthful testimony against Mr.
Butler and his second-in-command, Calvin Wright.
Ultimately, all of Mr. Butler’s co-defendants
except Mr. Wright agreed to plea guilty. Some of
these codefendants testified against Mr. Butler
and Mr. Wright at trial.
4. Mr. Butler was represented in the
Criminal Case by attorney Thomas J. Saunders. I
recall having only one conversation with Mr.
Saunders regarding the possibility that Mr.
Butler might plead guilty. Mr. Saunders
approached me and asked, in substance, if the
government would be amenable to a plea offer for
an agreed-upon term of incarceration. I do not
remember the precise term of incarceration that
Mr. Saunders proposed or if we discussed the
possibility of cooperation, but I do know that I
rejected it immediately because the figure he
proposed was far too low given the seriousness of
Mr. Butler’s conduct and the sentence that Mr.
Butler would likely receive following trial.
While I do not recall the exact date of this
conversation with Mr. Saunders, I do know that it
occurred sometime before August 2009, when the
Grand Jury returned a superseding indictment that
added to the Criminal Case, for the first time,

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allegations related to the murder of Fernando
Rodriguez by Mr. Butler.
5. After the return of the superseding
indictment in August 2009, I recall no further
discussions with Mr. Saunders concerning a plea
by Mr. Butler, nor any internal government
discussions about the possibility that Mr. Butler
would be offered a guilty plea agreement.
Id. at ¶¶ 3-5.

Significantly, Hazel also testified that “[a]s

the case progressed, I was not inclined to pursue a plea
agreement with Mr. Butler because of the seriousness of his
conduct and the strength of the evidence against him, and because
he was the kingpin of the violent criminal organization targeted
in the Criminal Case.

Furthermore, I can state categorically

that I would not have agreed to have the government enter into a
plea agreement with Mr. Butler absent either his cooperation or a
life sentence.”

Id. at ¶ 6 (emphasis added).

A brief recitation of the principles of law governing
Butler’s claims related to plea negotiations bears mentioning at
this point.

First, the standards established by the United

States Supreme Court in determining whether a defendant was
denied his Sixth Amendment right to effective assistance of
counsel are set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984).

Under Strickland, a plaintiff must show (1) that

counsel’s performance was so deficient that it fell below an
objective standard of reasonableness, and (2) that counsel’s
deficiency resulted in prejudice so as to render the results of
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the trial unreliable.

Id. at 687-91.

Counsel’s performance is

entitled to a presumption of reasonableness.

Id.

Second, the Supreme Court has held that a defendant’s
Sixth Amendment right to counsel extends to the plea-bargaining
process.

Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012).

However, the Court has also made clear that a defendant has “no
right to be offered a plea . . . nor a federal right that the
judge accept it.”

Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012)

(quoting Frye at 1410).
Finally, “[a] plea offer actually extended is a wholly
different matter from a plea bargain a petitioner simply believes
his attorney could or should have obtained for him.”

Wessling v.

Kenney, No. 4:04cv3375, 2007 WL 1289945, *2 (D. Neb. Mar. 13,
2007).

Furthermore, “there is no constitutional right to plea

bargain; the prosecutor need not do so if he prefers to go to
trial.”

Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
It is undisputed that the government never made a plea

offer to Butler.

Therefore, it is likewise undisputed that

Butler’s counsel was not deficient in failing to communicate a
plea offer to him because none existed.

Distilled to its

essence, Butler’s claim is actually that his attorney should have
been more aggressive in negotiating a non-cooperation plea on his
behalf.

However, even if this were true, Butler cannot establish

that he suffered prejudice under Strickland because, as noted

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above, a criminal defendant has no right to a plea agreement of
any kind.

Furthermore, Butler’s utter inability to demonstrate

prejudice is established by AUSA Hazel’s declaration that the
government would never have entered into a plea agreement with
Butler absent his cooperation or a life sentence, terms that
Butler himself testified were nonnegotiable.

See ECF 596 at p.

(“Claims 8 and 12 fail if it is true that the government would
not offer a plea for less than life unless Butler agreed to
cooperate.”); see also Morrow v. United States, Civil No. PJM 061801, 2007 WL 2225827, *3 (D. Md. July 30, 2007) (“However,
failure to pursue a plea bargain is not sufficient proof of
ineffective assistance of counsel where the record does not
indicate that the Government would have offered one.”).
In discussing the uphill battle a movant faces in
demonstrating Strickland prejudice on facts similar to those
herein, one court noted:
[E]ven if the petitioner’s trial counsel rendered
ineffective assistance during the plea
negotiations, the petitioner cannot establish
that he suffered any actual prejudice. The
petitioner had no entitlement to a plea agreement
of any kind. “[T]here is no constitutional right
to plea bargain; the prosecutor need not do so if
he prefers to go to trial. It is a novel
argument that constitutional rights are infringed
by trying the defendant rather than accepting his
plea of guilty.” Weatherford v. Bursey, 429 U.S.
545, 561 (1977).
In fact, it is pure speculation to suppose
that under any circumstances the plea bargain the
petitioner wanted would have materialized. . . .
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[N]o plea bargain on the terms he wanted was ever
offered. . . .
Even in then remote event that the
prosecutor might have offered the petitioner the
kind of plea bargain he wanted, it is pure
speculation to assume that the court would have
approved the bargain. . . The kind of hindsight
in which the petitioner engages to demonstrate
prejudice is too speculative.
Unlike the precedents cited by the
petitioner, his own conviction did not result
from a plea of guilty that he now regrets, or
from rejection of a plea offer that he now wishes
he had accepted. It is true that his attorney
failed to obtain the plea bargain the petitioner
would have liked. However, the prosecutor never
had any obligation to offer such an agreement.
Therefore, the absence of a desirable plea
bargain cannot be traced directly to trial
counsel’s performance.
Wessling v. Kenney, No. 4:04cv3375, 2007 WL 1289945, *3 (D. Neb.
Mar. 13, 2007).
In summary, for the reasons stated above, Butler cannot
demonstrate Strickland prejudice in connection with his
attorney’s handling of plea negotiations.
hearing is required.

No evidentiary

Therefore, Butler’s motion under 28 U.S.C.

§ 2255 is DENIED in its entirety and the Clerk is directed to
remove the matter from the court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that
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reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
The Clerk is directed to send copies of this Order to
counsel of record and unrepresented parties.
IT IS SO ORDERED this 30th day of March, 2016.
ENTER:

David A. Faber
Senior United States District Judge

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