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Butcher v. United States

February 2, 2006

CLAUDE BUTCHER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Claude Butcher's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Butcher's Section 2255 motion.

BACKGROUND

On November 13, 2003, Butcher was charged in a two-count indictment with: (1) conspiring to distribute in excess of 500 grams of mixtures containing cocaine in violation of 21 U.S.C. § 846; and (2) distributing in excess of 500 grams of mixtures containing cocaine in violation of 21 U.S.C. § 841(a)(1). (03 CR 898-2, R. 14-1, Indictment.) On May 21, 2004, Butcher pleaded guilty to the conspiracy count pursuant to a written plea agreement. (03 CR 898-2, R. 51-1, R. 52-1.) On October 14, 2004, the Court sentenced Butcher to 200 months' imprisonment. (03 CR 898-2, R. 68-1.) Butcher did not appeal his conviction and sentence to the United States Court of Appeals for the Seventh Circuit, but instead brings this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

LEGAL STANDARD

A district court must grant a Section 2255 motion to vacate, set aside or correct a sentence when a petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005) (citations and quotations omitted). A Section 2255 motion, however, cannot substitute for a direct criminal appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). Accordingly, if a petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005), or that enforcing the procedural default would lead to a "fundamental miscarriage of justice." Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). On the other hand, because claims of ineffective assistance of counsel usually involve evidence outside the record, such claims are properly brought for the first time in a Section 2255 motion. See Ballinger v. United States, 379 F.3d 427, 429-30 (7th Cir. 2004) (citing Massaro v. United States, 538 U.S. 500, 509, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003)).

ANALYSIS

Construing Butcher's pro se Section 2255 motion liberally, see United States v. Ogle, 425 F.3d 471, 475 (7th Cir. 2005), Butcher brings three constitutional claims. First, Butcher contends that because his trial attorney failed to file a notice of appeal after he requested counsel to do so, he was denied constitutionally effective assistance of counsel. Second, Butcher argues that his counsel provided constitutionally ineffective assistance of counsel for failing to recognize that the evidence was insufficient to convict him of conspiring to distribute cocaine. Last, Butcher asserts that the Court improperly sentenced him as a career offender because one of his qualifying offenses was a state drug trafficking offense that is not covered by the authorizing legislation for the United States Sentencing Guidelines. The Court addresses each argument in turn.

I. Ineffective Assistance of Counsel -- Appeal Request

First, Butcher contends that he asked his counsel to perfect an appeal, yet counsel ignored his request. The Seventh Circuit has held that an attorney's "failure to take an appeal, despite the defendant's request, is ineffective assistance without regard to the probability of success on appeal." Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); see also Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In Flores-Ortega, the Supreme Court explained that relevant to this inquiry is whether the defendant set forth evidence that he expressed a desire to appeal. See id. at 485.

Here, Butcher has not presented any evidence substantiating his claim that he asked his lawyer to appeal his conviction and sentence, such as his own affidavit. See id. at 485; see also Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (district court did not err in denying Section 2255 petition where petitioner failed to produce any evidence, including affidavits, that would substantiate his claim of ineffective assistance).

Meanwhile, in his plea agreement, Butcher waived his right to appeal. Specifically, the plea agreement states that Butcher "further understands that he is waiving all appellate issues that might have been available if he had exercised his right to trial." (03 CR 0898, R. 52-1, Plea Agreement, ¶11.) Accordingly, even if Butcher's attorney had filed a notice of appeal, Butcher's claims on appeal would fail because he waived them in his plea agreement. Therefore, because "it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court," the Court summarily dismisses Butcher's ineffective assistance of counsel claim concerning his request for an appeal. See Rule 4(b) of the Rules Governing Section 2255 Proceedings.

Finally, because Butcher did not provide the Court with any affidavits supporting his request for an evidentiary hearing regarding this claim, the Court denies his request for a hearing. Galbraith, 313 F.3d at 1009 (bare allegations do not meet threshold requirement for Section 2255 evidentiary hearing); Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) ("hearing is not necessary if the petitioner makes ...


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