United States v. Butler
Decision Date | 05 December 2014 |
Docket Number | Cr. No. 2:09-cr-20440-STA-1,No. 2:11-cv-02875-STA-tmp,2:11-cv-02875-STA-tmp |
Court | U.S. District Court — Western District of Tennessee |
Parties | UNITED STATES OF AMERICA, Plaintiff, v. CLIFTON BUTLER, Defendant. |
On October 4, 2011, Defendant Clifton Butler, Bureau of Prisons registration number 23441-076, 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 August17, 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:
PLEA AGREEMENT
The full and complete plea is as follows:
(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) hehired 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.)
"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:
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) ( ); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) ( ); 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 cour...
To continue reading
Request your trial