United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
T. SCHULTZ, United States Magistrate Judge
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.
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withdrawn to correct a manifest injustice.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).
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).
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).
Standard of Review
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
(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;
(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).
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.
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
Exhaustion and Procedural Default under 28 U.S.C. §
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).
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
Ineffective Assistance of Trial Counsel
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.