United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
DAVID A. FABER, Senior District Judge.
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. (ECF 597). 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.
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 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:
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: 0394 not interested in plea disc. 0394 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).
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 ...