United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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).
Standard for Motion to Vacate Pursuant to 28 U.S.C. §
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
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.
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
United States v. Lemaster, 403 F.3d 216, 221-22
(4th Cir. 2005) (internal citations omitted).
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.
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 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 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).
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
Coerced plea & promised sentence
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).
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).
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 ...