United States District Court, W.D. Tennessee, Western Division
ORDER DENYING AND DISMISSING MOTION UNDER 28 U.S.C. ORDER DENYING CERTIFICATE OF APPEALABILITY AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
S. THOMAS ANDERSON, District Judge.
On October 4, 2011, Defendant Clifton Butler, Bureau of Prisons registration number XXXXX-XXX, an inmate at the Federal Correctional Institution in Memphis, Tennessee, filed a motion pursuant to 28 U.S.C. § 2255. (ECF No. 1.) On May 31, 2012, the Court directed the United States to file a response. (ECF No. 2.) On July 1, 2012, the United States filed a motion to release trial counsel from attorney-client privilege. (ECF No. 3.) On February 4, 2014, the Court entered an order granting the motion. (ECF No. 6.) On October 9, 2014, the United States filed a response. (ECF No. 10.)
On October 27, 2009, a federal grand jury indicted Butler in a two-count indictment charging him with possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g) (Count One) and possession of approximately 670 grams of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Two). (Cr. ECF Nos. 1-3.) On August 17, 2010, Defendant pled guilty to Count One of the indictment pursuant to a written plea agreement. (Cr. ECF Nos.23-25.) The plea agreement provided:
The full and complete plea is as follows:
The following constitutes the Plea Agreement reached between the United States, represented by Edward L. Stanton, III, United States Attorney for the Western District of Tennessee, and R. Matthew Price, Assistant United States Attorney, and the defendant, CLIFTON BUTLER, represented by LORNA McCLUSKY, defense counsel.
CLIFTON BUTLER agrees that he will enter a voluntary plea of guilty to count ONE of the indictment because he is in fact guilty.
The United States agrees to dismiss any remaining counts of the indictment against the defendant at the appropriate time.
Given the facts in the possession of the United States at the time of the writing of this agreement, the United States does not oppose the defendant receiving acceptance of responsibility credit pursuant to U.S.S.G. Section 3E1.1. CLIFTON BUTLER understands that if the United States receives information between the signing of this agreement and the time of the sentencing that the defendant has previously engaged in, or if he engages in the future, in conduct inconsistent with the acceptance of responsibility, including, but not limited to participation of any additional criminal activities between now and the time of sentencing, this position could change. Further, CLIFTON BUTLER understands that whether or not acceptance of responsibility credit pursuant to Section 3E1.1 is granted is a matter to be determined by the District Court. Failure of the District Court to grant acceptance of responsibility credit is not a basis for CLIFTON BUTLER to withdraw his guilty plea.
CLIFTON BUTLER understands that any statement made in the course of the plea colloquy may be used against him in any criminal prosecution. CLIFTON BUTLER knowingly, intelligently and voluntarily waives any objection based on Fed.R.Evid. 410
CLIFTON BUTLER agrees that this plea agreement constitutes the entire agreement between himself and the United States and that no threats have been made to induce him to plead guilty. By signing this document, CLIFTON BUTLER acknowledges that he has read this agreement, has discussed it with his attorney and understands it.
(Cr. ECF No. 24 at PageID 23-24.)
A presentence report ("PSR") was prepared recommending a base offense level of twenty four, pursuant to United States Sentencing Guideline ("U.S.S.G.") § 2K2.1(a)(2), because the firearm was possessed subsequent to two prior felony controlled substance offenses. (Cr. ECF No. 41-1 at PageID 82.) The offense level was increased four levels pursuant to U.S.S.G. § 2K2.1(b)(4)(B) because the firearm had an obliterated serial number and increased an additional four levels pursuant to U.S.S.G. § 2K2.1(b)(6) because the firearm was possessed in connection with another felony offense (possession of marijuana with intent to sell) for an adjusted offense level of thirty-two. ( Id. at PageID 82-83.) The Court granted the United States' motion that Defendant be awarded full credit for acceptance of responsibility for a total offense level of twenty-nine. ( Id. at PageID 83.) Defendant's criminal history category was four, resulting in a guideline imprisonment range of 121 to 151 months in prison, however, the restricted range was 120 months. ( Id. at PageID 84.) The United States recommended a sentence of 120 months. ( Id. at PageID 91.) Defense counsel argued for a downward variance. (Cr. ECF No. 65 at 31-32.) The Court imposed a term of imprisonment of one hundred eight (108) months, to be followed by a three-year period of supervised release. ( Id. at PageID 121, Cr. ECF Nos. 29, 34.)
Defendant filed a notice of appeal. (Cr. ECF No. 33.) The Court permitted trial counsel to withdraw from the appeal and appointed new appellate counsel. (Cr. ECF Nos. 36, 39.) After reviewing the record, appellate counsel filed a motion to voluntarily dismiss the appeal, pursuant to Fed. R. App. P. 42(b). The Sixth Circuit granted the motion. United States v. Butler, No. 10-6537 (6th Cir. Apr. 14, 2011). (Cr. ECF No. 45.)
In the motion under 28 U.S.C., § 2255, Defendant contends that counsel provided ineffective assistance. (ECF No. 1 at PageID 4-5.) Specifically, Defendant contends that (1) he hired William Massey, not Lorna McClusky, to represent him and that McClusky coerced and pressured him into pleading guilty, (2) McClusky failed to challenge statements in the affidavit of arrest and to appeal the denial of bond, (3) McClusky did not arrange for him to view the firearm, and (4) McClusky failed to present evidence of his rehabilitation during the sentencing hearing. ( Id. ) The United States has responded that Defendant's motion is without merit. (ECF No. 10 at PageID 30.)
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In those rare instances where the defaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a "complete miscarriage of justice, " it seems to us that what is really being asserted is a violation of due process.
Even constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating his "actual innocence." Bousley, 523 U.S. at 622.
"[A] § 2255 motion may not be employed to relitigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances, such as an intervening change in the law." Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); see also DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (same).
After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion...." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("Section 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), Section 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, Section 2255 Rules.
"In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.'" Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). "[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("[A] motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion...."). Defendant has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
A claim that ineffective assistance of counsel has deprived a defendant of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate deficient performance by counsel, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688.
A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. [ Strickland, 466 U.S.] at 689. The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687.
Harrington v. Richter, 131 S.Ct. 770, 787 (2011).
To demonstrate prejudice, a prisoner must establish "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." Id.
It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." [ Strickland, 466 U.S.] at 693, 104 S.Ct. 2052. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687, 104 S.Ct. 2052.
Richter, 131 S.Ct. at 787-88; see also id. at 791-72 ("In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.... The likelihood of a different result must be substantial, not just conceivable." (citations omitted)); Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam) ("But Strickland does not require the State to rule out' [a more favorable outcome] to prevail. Rather, Strickland places the burden on the defendant, not the State, to show a reasonable probability' that the result would have been different." (citing Strickland, 466 U.S. at 694)).
"Surmounting Strickland 's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms, " not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
Richter, 131 S.Ct. at 788.
The two-part test stated in Strickland applies to challenges to guilty pleas based on the ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). "[T]o satisfy the prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59; Padilla, 559 U.S. at 372 ("[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.").
Defendant hired William Massey, not Lorna McClusky and McClusky coerced and pressured Defendant into pleading guilty
Defendant Butler alleges that he entered into the plea agreement with the United States because counsel advised him that the prosecutor planned to supersede his indictment and that action would result in a longer sentence. (ECF No. 1 at PageID 5.) He alleges that he "felt rushed, pressured, and coerced into pleading guilty." ( Id. ) The terms of Defendant's plea agreement are set forth above. By signing the agreement, Defendant expressly acknowledged that, although he would receive a recommendation for a three-level reduction for acceptance of responsibility, any recommendations by the United States were not binding on the Court and should the Court not accept the recommendations he had no right to withdraw his plea. (Cr. D.E. 24 at PageID 24.) Additionally, the United States agreed to move for dismissal of the second count of the indictment. ( Id. at PaageID 23.) The plea agreement explicitly stated that the "plea agreement constitutes the entire agreement between himself and the United States and no threats have been made to induce him to plead guilty." ( Id. at Page ID 24)
Defendant's change of plea hearing was originally scheduled for July 30, 2010. (Cr. ECF No. 22.) On July 30, Defendant asked for and received additional time to consider the plea agreement. ( Id. ) During the change of plea hearing on August 17, 2010, the following exchanges took place between the Court, Defendant, the AUSA, and defense counsel:
The Court: [I]f you want to talk to Ms. McClusky before you answer any of my questions, if there is anything you want to ask her before you respond, I'll allow you to do that, so, again, you let me know, okay?
Defendant: Yes, sir.
The Court: Do you understand why you are here today?
Defendant: Yes, sir.
The Court: Have you had an opportunity to discuss your case fully with your attorney?
Defendant: Yes, sir.
The Court: Let me be sure I'm clear about this. On my docket sheet we have
Mr. Massey down, is that an old -
Ms. McClusky: We work together in the same office, and our law firm represents him.
The Court: But you've been the one that's actually spoken and then conferred with Mr. Butler?
Ms. McClusky: ...