Butcher v. U.S.

• Decision Date: 05 May 2004
• Docket Number: No. 02-17033.,02-17033.
• Citation: 368 F.3d 1290
• Parties: Holly W. BUTCHER, John T. Renick, Petitioners-Appellees, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

368 F.3d 1290

Holly W. BUTCHER, John T. Renick, Petitioners-Appellees, v. UNITED STATES of America, Respondent-Appellant.

No. 02-17033.

United States Court of Appeals, Eleventh Circuit.

May 5, 2004.

E. Bryan Wilson, Tallahassee, FL, Michelle McCain Heldmyer, Nancy J. Hess, Asst. U.S. Atty., Pensacola, FL, for Respondent-Appellant.

Dan C. Guthrie, Jr., Dallas, TX, Ronald Wayne Johnson, Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, FL, for Petitioners-Appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before CARNES and WILSON, Circuit Judges, and JORDAN^*, District Judge.

CARNES, Circuit Judge:

Six years ago, Holly W. Butcher and John T. Renick were convicted in federal district court of multiple counts of fraud and money laundering. This is the third time their case has been before us since then. It is here this time on the government's appeal of the district court's judgment vacating their convictions and sentences under 28 U.S.C. § 2255 on grounds of ineffective assistance of counsel. We reverse.

I.

We will recite only those facts necessary for an understanding of this opinion. A more extensive discussion of the facts may be found in the opinions we issued in our two prior decisions in this case. The first of those two opinions was unpublished, United States v. Butcher, No. 98-3806, 1999 WL 1188921 (11th Cir. Nov. 24, 1999), but we reproduced that opinion as an appendix to the published opinion we issued in the next appeal in the case, United States v. Renick, 273 F.3d 1009 (11th Cir.2001). (We will be citing that first opinion as Butcher, 203 F.3d at 839 (appendix)).

Butcher was the CEO and administrator of the Rivendell hospitals in Ft. Walton Beach and Panama City, Florida. Renick, a psychiatrist, was employed by Rivendell as a physician and for a time as Medical Director. Renick was excluded from billing both Medicare and the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) due to a prior conviction for mail fraud. Both Butcher and Renick were aware of the terms of Renick's exclusion.

In July 1998, Butcher and Renick (whom we will be calling "petitioners") were charged in a 38-count indictment with crimes including conspiracy to commit money laundering and conspiracy to defraud the United States by submitting false claims to Medicare and CHAMPUS. At trial, when the government closed its case both petitioners moved for judgment of acquittal on all counts pursuant to Fed.R.Crim.P. 29. The district court expressed its belief that the government's case was weak, but reserved ruling on the motions until after the verdict. The petitioners, in turn, rested without presenting evidence.

The jury returned verdicts against the petitioners on all 38 counts of the indictment. Thereafter, the district court issued an order granting the reserved motions for judgment of acquittal on all 38 counts, expressing its view that the evidence was insufficient to support a finding that petitioners possessed the requisite intent to commit each offense for which they had been charged and convicted.

On appeal, we reversed after concluding that the jury's verdict was supported by sufficient evidence. We remanded with instructions for the district court to reinstate the jury's verdicts of guilty as to both defendants and on all counts. Butcher, 273 F.3d at 1035 (appendix).

After remand but before sentencing, petitioners filed motions for a new trial pursuant to Fed.R.Crim.P. 33, as well as alternative motions to vacate pursuant to 28 U.S.C. § 2255. The district court conducted a hearing on those motions for new trial and, over the government's objection, allowed the defendants to supplement the record in support of their motions with affidavits of witnesses who were not called at trial. At the conclusion of the hearing the district court stated that the motions would be granted.

After reflection, however, the court issued a written order of denial, concluding that the motions for new trial were untimely. Rule 33 specifies that a motion for new trial based on grounds other than newly discovered evidence "must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period," Fed.R.Crim.P. 33(b)(2), and petitioners' motions had not met that deadline. In its order the district court explained that it would have granted the motions for new trial but for the fact that their untimeliness deprived it of jurisdiction to do so.

At the same time the district court denied the motions for a new trial, it also denied the petitioners' alternative motions under § 2255 to vacate their convictions and sentences. It did so because the petitioners had not yet been sentenced and were not in custody and therefore did not meet the "custody under sentence" requirement of § 2255.

The petitioners were sentenced on June 22, 2000 and were released pending appeal. During their direct appeal they challenged their convictions and sentences on a number of grounds that are not relevant to our present discussion. Renick, 273 F.3d at 1011. The government cross-appealed, asserting that the district court erred in calculating the petitioners' sentences. We affirmed the petitioners' convictions but remanded to correct a sentencing error. Id. at 1028.

The petitioners were resentenced. Thereafter, they once again moved to vacate their sentences pursuant to § 2255, this time on the basis that their trial counsel had provided ineffective assistance by failing to file their motions for a new trial in a timely manner. A magistrate judge to whom the district court referred the § 2255 motions, issued a report and recommendation advising that the motions be granted. Over the government's objection, the district court issued an order adopting the report and recommendation in its entirety and granting petitioners' § 2255 motions. It entered formal judgment in favor of the petitioners, setting aside their convictions and sentences. The government appealed.¹

II.

We review de novo the district court's judgment granting relief on a petitioner's claim of ineffective assistance of counsel. Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir.2000) (en banc).

To succeed on a claim of ineffective assistance, a habeas petitioner must satisfy both prongs of the test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The performance prong requires a petitioner to establish that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that he failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89, 104 S.Ct. at 2064-65. The prejudice prong requires a petitioner to demonstrate that seriously deficient performance of his attorney prejudiced the defense. Id. at 687, 104 S.Ct. at 2064.

Unless a petitioner satisfies the showings required on both prongs, relief is due to be denied. Id. As a result, once a court decides that one of the requisite showings has not been made it need not decide whether the other one has been. Id. at 697, 104 S.Ct. at 2069 (A court need not "address both components of the inquiry if the [petitioner] makes an insufficient showing on one."); Duren v. Hopper, 161 F.3d 655, 660 (11th Cir.1998) ("if a defendant cannot satisfy the prejudice prong, the court need not address the performance prong"). In this case we need not look beyond the prejudice prong.

To establish prejudice, a petitioner must show "there is 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, 104 S.Ct. at 2068. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "[P]etitioners must affirmatively prove prejudice because `[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. [T]hat the errors had some conceivable effect on the outcome of the proceeding' is insufficient to show prejudice." Gilreath v. Head, 234 F.3d 547, 551 (11th Cir.2000) (alteration in original) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067).

III.

In denying the petitioners' new trial motions as untimely, the district court stated that if they had been timely filed it would have granted them based upon the weight of the evidence, and demonstrated its sincerity by setting out in some detail the reasons it would have done so. That, the petitioners contend, is all we need to know — had their counsel not messed up, the district court would have ordered a new trial.

The government acknowledges that the district court would have given the petitioners a new trial upon timely motions. However, it contends that would have done the petitioners no good because this Court would have reversed the grant of a new trial when the government appealed. According to the government, it is apparent that we would have reversed any relief granted on weight of the evidence grounds, because in the first appeal we determined that the evidence was sufficient to convict and for that reason we reversed the district court's post-verdict judgments of acquittal. See Butcher, 273 F.3d at 1035 (appendix).

The petitioners argue that it does not matter what this Court would have done with the government's appeal from the grant of a new trial, because prejudice ought to be determined at the trial court level as though the government had no right to appeal. The government says not so, because it does have the right to appeal the grant of new trial motions, and it certainly would have done so in this case. The government's representation to us that it would have appealed is amply corroborated by the dogged persistence it has displayed in defending the jury's verdict throughout the six-year, post-conviction history of this...