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Butters v. Pawelk

United States District Court, D. Minnesota

October 17, 2017

ROBERT PATRICK BUTTERS, Petitioner,
v.
CHRIS PAWELK, Respondent.

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ, United States Magistrate Judge

         INTRODUCTION

         On October 11, 2013 Robert Butters was a passenger in a vehicle driven by A.D. They drove to a gas station and Butters filled the tank with gasoline. Butters tried to pay for the gas with a credit card that did not belong to him or A.D. but rather had K.H's name on it. Butters did not know K.H. and did not have K.H.'s permission to use the card. Before he attempted to use K.H.'s card, Butters had tried to use a check drawn on K.H's account to pay for the gas. Plea Tr. 12-14, Docket No. 9 at 18-20. Butters pleaded guilty to financial transaction card fraud in Ramsey County District Court on January 6, 2014. Petition ¶¶ 1-2, 6, Docket No. 1.

         On March 13, 2014 Butters was sentenced to 60 months imprisonment based on his status as a career offender. Id. ¶¶ 2, 3; Sentencing Tr. 7, Docket No. 9 at 33. Butters appealed his conviction to the Minnesota Court of Appeals, asserting that his guilty plea must be withdrawn to correct a manifest injustice. He argued that his plea was not accurate because the record does not establish that he knew he did not have K.H.'s consent to use her credit card. See State v. Butters, No. A14-0983, 2015 WL 648396, at *1-2 (Minn.Ct.App. Feb. 17, 2015), rev. denied (Minn. Apr. 28, 2015); Docket No. 6-1 at 27-28. The Minnesota Court of Appeals affirmed Butters's conviction on February 17, 2015, and the Minnesota Supreme Court denied his petition for review on April 28, 2015. Docket No. 6-1 at 27-28 (court of appeals opinion), 29-38 (petition for review), 44 (order denying review). The United States Supreme Court denied his petition for a writ of certiorari on October 5, 2015. Butters v. Minnesota, 136 S.Ct. 152 (2015).

         On May 18, 2015 Butters filed a pro se petition for postconviction relief in Ramsey County District Court. Petition ¶ 11, Docket No. 1; Docket No. 6-1 at 47-55 (postconviction petition). The district court denied the petition on September 24, 2015. Order & Mem., Docket No. 6-1 at 72-79. The Minnesota Court of Appeals affirmed the denial of postconviction relief on June 6, 2016, and the Minnesota Supreme Court denied Butters's petition for review on August 9, 2016. Butters v. State, No. A15-1917, 2016 WL 3129489 (Minn.Ct.App. June 6, 2016), rev. denied (Aug. 9, 2016); Docket No. 6-1 at 112-115 (court of appeals opinion), 116-17 (petition for review), 118 (order denying review).

         Butters filed this pro se habeas petition on October 13, 2016 asserting seven grounds for relief, most of them based on claims of ineffective assistance of trial and appellate counsel. Docket Nos. 1, 1-1 (attachments).

         DISCUSSION

         1. Standard of Review

         A federal court's review of habeas corpus petitions filed by state prisoners is governed by 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Section 2254(a) provides that a federal court shall entertain a habeas corpus petition of a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” A state prisoner's application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         The standard in § 2254(d) is “difficult to meet.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014). The Supreme Court has stated that “‘[c]learly established Federal law' for purposes of § 2254(d)(1) includes only the holdings as opposed to the dicta, of this Court's decisions.” Id. (quotations and citations omitted). A lower court may not consult its own precedents rather than those of the Supreme Court in assessing a habeas claim governed by § 2254. Id. n.2.

         A decision is “contrary to” clearly established Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, ” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of the Supreme Court's holdings “must be objectively unreasonable, not merely wrong; even clear error will not suffice.” White, 134 S.Ct. at 1702 (quotations and citations omitted). “[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

         2. Exhaustion and Procedural Default under 28 U.S.C. § 2254

         “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations and quotations omitted). “A petitioner meets the fair presentation requirement if the state court rules on the merits of his claims, or if he presents his claims in a manner that entitles him to a ruling on the merits.” Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999). Thus, before habeas relief is available to a petitioner, a court must first determine whether the petitioner has fairly presented his federal claims to the state court. McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997).

         If a petitioner has failed to do so, the federal court “must then determine whether the petitioner has complied with state procedural rules governing post-conviction proceedings, i.e., whether a state court would accord the prisoner a hearing on the merits.” Id. “If state procedural rules prevent the petitioner from obtaining such a hearing, then the petitioner is also procedurally barred from obtaining habeas relief in a federal court unless he can demonstrate either cause and actual prejudice, or that a miscarriage of justice will occur if [the court] do[es] not review the merits of the petition.” Id. “The fundamental miscarriage of justice exception . . . is only available to a petitioner who demonstrates that a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 758 (citations and quotations omitted); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991). When a petitioner has not exhausted a claim and state procedural rules preclude further attempts to present the claim to satisfy the exhaustion requirement, that claim is not unexhausted but rather is procedurally defaulted.

         3. Ineffective Assistance of Trial Counsel

         a. Strickland Standard

         To establish ineffective assistance of counsel, a petitioner must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 446 U.S. 668, 688, 694 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         b. State ...


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