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Butler v. United States

United States District Court, D. Maryland

August 6, 2019




         Presently pending and ready for resolution is the motion to vacate sentence pursuant to 28 U.S.C. § 2255 (ECF No. 53) filed by Petitioner Tyrone Butler (“Petitioner”) and the unopposed motion to seal (ECF No. 69) filed by the United States. The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons the motion to vacate will be denied and the motion to seal will be granted.

         I. Background

         On March 5, 2012, the Grand Jury returned an indictment charging Petitioner with conspiracy to distribute and possess with intent to distribute 28 grams or more of cocaine base. (ECF No. 1). On March 6, 2014, Petitioner pled guilty, without a plea agreement, to the charged offense. (ECF No. 70-1). On June 11, 2014, the United States filed a sentencing memorandum noting “[t]he seriousness of the [Petitioner's] offense conduct and criminal history, and the sentencing objectives of punishment, deterrence, and protection of the community, ” and recommended “a sentence of 170 months.” (ECF No. 29, at 5). Petitioner's counsel, William Welch (“Mr. Welch”), filed a sentencing memorandum on Petitioner's behalf on November 12, 2014, arguing that Petitioner “should not be sentenced as a ‘career offender,' facing 188 - 235 months (fifteen and a half to almost twenty years) in federal prison[.]” (ECF No. 36, at 2). This argument was based on a potential challenge to one of Petitioner's state convictions, which Petitioner alleged was requisite to his career offender status. (Id.). Petitioner instead asked for “the five year minimum required by 21 U.S.C. § 841[.]” (Id.). The United States filed a supplemental sentencing memorandum in response, opposing Petitioner's “request for a downward variance.” (ECF No. 40, at 6). The United States argued that Petitioner's state conviction at issue was not necessary to categorize him as a career offender, and “note[d] that U.S.S.G. § 4B1.3(b)(3)(A) specifically states that ‘[t]he extent of a downward departure under this subsection for a career offender within the meaning of 4B1.1 (career Offender) may not exceed one criminal history category.'” (Id.). The United States recommended that “[a]s a career offender, [Petitioner's] offense level is 34, pursuant to U.S.S.G. § 4B1.1(1), with a criminal history category VI” and that “[a]fter acceptance of responsibility, [Petitioner's] offense level is 31/VI, producing a range of imprisonment of 188-235 months.” (Id.).

         On February 2, 2015, the court sentenced Mr. Butler to a term of 96 months imprisonment followed by 4 years of supervised release. At sentencing, the court adopted the factual findings and guideline applications in the Presentence Report (“PSR”) and determined that Petitioner's total offense level was 31 and that he was a career offender with a criminal history category of VI.

         On the same date, Mr. Butler was sentenced in Criminal No. DKC 01-0272 to a 24 month sentence of imprisonment, consecutive to the sentence imposed in case number DKC 12-0116, for the conviction of a new offense while on supervised release, which was a violation of his terms of supervised release.

         On February 4, 2016, Petitioner filed a motion for writ of habeas corpus to correct, set aside, or vacate his conviction due to ineffective assistance of counsel under 28 U.S.C. § 2255. (ECF No. 53-5). On July 26, 2016, the United States filed a response (ECF No. 68), and on August 22, 2016 Petitioner replied (ECF No. 74).

         II. Standard for Motion to Vacate Pursuant to 28 U.S.C. § 2255

         Title 28 U.S.C. § 2255 requires a petitioner asserting constitutional error to prove by a preponderance of the evidence that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law.” On the other hand, “[t]he scope of review of non-constitutional error is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves ‘a fundamental defect which inherently results in a complete miscarriage of justice,' or is ‘inconsistent with the rudimentary demands of fair procedure.'” United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999) (internal citation omitted).

         While a pro se movant is entitled to have his arguments reviewed with appropriate consideration, see Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978), cert. denied, 439 U.S. 970 (1978), if the § 2255 motion, along with the files and records of the case, conclusively shows that he is entitled to no relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255.

         A conviction and sentence based on a guilty plea can only be collaterally attacked on relatively narrow grounds, including that the plea was not voluntary, that the petitioner was not advised by competent counsel, or that the court clearly lacked authority to impose the sentence. United States v. Broce, 488 U.S. 563, 569 (1989). In addition, statements made by a defendant during a hearing, as mandated by Fed.R.Crim.P. 11, to accept his guilty plea are subject to a strong presumption of veracity, and challenges under § 2255 that contradict these statements may generally be dismissed without an evidentiary hearing:

“[A] defendant's solemn declarations in open court . . . ‘carry a strong presumption of verity, '” . . . because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy. . . . “Indeed, because they do carry such a presumption, they present ‘a formidable barrier in any subsequent collateral proceedings.'” . . . Thus, in the absence of extraordinary circumstances, . . . allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always “palpably incredible” and “patently frivolous or false.” . . . Thus, in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements.

United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (internal citations omitted).

         III. Analysis

         To prevail on a claim of ineffective assistance of counsel, a petitioner must first show that “counsel's efforts were objectively unreasonable when measured against prevailing professional norms.” Frazer v. South Carolina, 430 F.3d 696, 703 (4th Cir. 2005). In evaluating objective unreasonableness, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Strickland v. Washington, 466 U.S. 668, 689 (1984). Counsel's “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, ” id. at 690, but counsel also “has a duty to make reasonable investigations or to make a reasonable decision that [] particular investigations [are] unnecessary, ” id. at 691. In addition, a petitioner must show prejudice, meaning that “there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different.” Id. at 694.

         Petitioner appears to raise seven claims of ineffective assistance by his trial counsel. First, Petitioner alleges that Mr. Welch was ineffective because he promised Petitioner that he would receive a “51-71 month sentence” if he pleaded guilty (ECF Nos. 53-5, at 5; 53-2, at 4) and “coerced Petitioner to plead guilty” (ECF No. 53-1, at 2). Second, Petitioner alleges that Mr. Welch was an ineffective counsel “based on the manner in which [Mr. Welch] misinformed him of the federal evidence, pertaining to the statement of facts, resulting in Petitioner taking an unintelligent plea” (ECF No. 53, at 13) and that Mr. Welch did not allow Petitioner to review the PSR (ECF No. 53-1, at 7). Third, Mr. Welch was ineffective because he “advised [Petitioner] to plead guilty without having in his possession or having knowledge of what was presented to the grand jury.” (ECF No. 53, at 13). Fourth, Petitioner claims that “had [Mr. Welch] appropriately investigated the evidence by challenging the information in [the United States'] statement of facts, [Mr. Welch] would have known that the Petitioner is actually innocent of being responsible for [c]onspiracy to [sell] 28 grams or more of [c]ocaine [b]ase.” (ECF No. 53-1, at 5). Fifth, Mr. Welch was ineffective because he persuaded Petitioner to “plead guilty to Career Offender's guideline (when in the end it was found that Petitioner did not qualify)[.]” (Id., at 11). Sixth, Mr. Welch was ineffective because he “never contested [the United States'] theory of Petitioner conspiring with others to s[e]1[1] 28 grams or more of [c]ocaine [b]ase when, ironically, Petitioner was the only defendant charged with conspiracy who, according to [the United States], conspired with himself to s[e]1[1] 28 grams or more of Cocaine Base.” (Id., at 8). And Seventh, Mr. Welch was ineffective because he told Petitioner that he “filed a motion to [s]uppress the wiretap[, ] [b]ut [] never informed the Petitioner of the wiretap results that the Court had ruled upon.” (ECF Nos. 53-5, at 4; 53-2, at 3) (internal quotations omitted).

         The United States opposes the Motion by reference to the record, an affidavit submitted by Mr. Welch, and an opinion granting the right to a belated appeal in state court. (ECF Nos. 68 & 70). Petitioner filed a reply on August 22, 2016. (ECF No. 74).

         A. Coerced plea & promised sentence

         Petitioner alleges that Mr. Welch was ineffective because he promised Petitioner that he would receive a “51-71 month sentence” if he pleaded guilty (ECF Nos. 53-5, at 5; 53-2, at 4) and “coerced Petitioner to plead guilty” (ECF No. 53-1, at 2). Mr. Welch states that he advised Petitioner that his guidelines would be 57 to 71 months if a prior state conviction was overturned and he accepted responsibility. (ECF No. 70-3, at 7).

         At the plea hearing, Petitioner was specifically asked whether anyone had promised him what the sentencing guidelines would be. He answered “No, ma'am.” (ECF No. 70-1, at 10). The court noted that “with regard to the new offense, the parties have not . . . entered into any agreements.” At the conclusion of the plea hearing, Mr. Welch advised the court that he intended to investigate a prior state conviction and might file a petition for a writ of error coram nobis. (ECF No. 70-1, at 20).

         Petitioner's right to plead not guilty was explained to him:

THE COURT: First, you have the absolute right to plead not guilty. No. one can make you come into court and enter a guilty plea. If you plead not guilty, you are presumed to be innocent. That means you cannot be found guilty unless there's a ...

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