United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
C. Mitchell United States Magistrate Judge
respectfully recommended that the petition of Michael Butler
for a writ of habeas corpus (ECF No.1) be dismissed, and
because reasonable jurists could not conclude that a basis
for appeal exists, that a certificate of appealability be
Butler, an inmate at the State Correctional
Institution-Forest- has presented a petition for a writ of
habeas corpus. Butler is presently serving a 16 to 32 years
sentence imposed following his conviction by a jury of
possession with intent to deliver, conspiracy to possess with
intent to deliver and dealing in unlawful proceeds at No.
CP-02-CR-11981-2007 in the Court of Common Pleas of Allegheny
County, Pennsylvania. This sentence was imposed on February
appeal was filed in the Superior Court in which the questions
I. Was the evidence insufficient to sustain a criminal
conspiracy conviction where Mr. Butler did not agree with
Sonny Tejada to commit the crime of possession with intent to
deliver, or intent to promote or facilitate that crime with
II. Was the evidence insufficient to sustain a conviction of
possession with intent to deliver and possession of drug
paraphernalia where Mr. Butler was not in possession, either
actual or construction, of a controlled substance, or of any
III. Was the evidence insufficient to sustain a conviction
for dealing in proceeds of unlawful activity where Mr. Butler
had no knowledge that the property involved represented
proceeds of unlawful activity; and therefore, did not intend
to promote the carrying on of that unlawful activity, and did
not attempt to avoid a transaction reporting requirement
under state or federal law?
IV. Was the anticipatory warrant for the search and seizure
of the 1999 Subaru Outback supported by probable cause and
thus valid where it contained a material misstatement of
fact, and was based in part upon information obtained through
exploitation of illegal police conduct; and was the warrant
for the search at 5365 Hillcrest Street constitutionally
invalid where it was facially vague and failed to describe
the particular unit to be searched?
V. Did the court err in granting the Commonwealth's
motion in limine with regard to allowing the state trooper
from Nebraska to testify as to the nature and circumstances
of the stop and arrest of Mr. Butler, and confiscation of the
van he was driving, particulars of the van, and the canine
alerts, referred to as 404(B) evidence, and finding that the
probative value of this evidence outweighed its prejudicial
VI. Did the lower court err in imposing an illegal sentence
for criminal conspiracy (possession with intent to deliver a
controlled substance) insofar as the sentence enhancement
provision of 35 P.S. §780-115(a) was inapplicable, and
therefore, the court exceeded the statutory limit of 5 to 10
years imprisonment in ordered Mr. Butler to serve a term of
imprisonment of 9 years to 18 years?
memorandum filed on April 20, 2011, the Superior Court
remanded for resentencing and affirmed on all other
grounds. Butler filed a petition for allowance of
appeal which was denied by the Pennsylvania Supreme Court on
September 26, 2011.Pursuant to the mandate of the Superior
Court, on October 27, 2011 Butler was resentenced to an
aggregate sentence of 16 to 32 years.
appeal was filed in the Superior Court in which the issue
Did the lower court abuse its discretion in imposing an
unreasonable and manifestly excessive sentence totaling 16 to
32 years imprisonment by imposing consecutive sentences upon
focusing exclusively on the seriousness of the crimes, and
did not consider relevant factors required by the crimes
code, including Mr. Butler's background, character,
history and rehabilitative needs?
5, 2013, the Superior Court affirmed.
then filed a post-conviction petition which was dismissed on
May 5, 2014. An appeal was filed in the Superior Court
in which the questions presented were:
I. Did the PCRA court err in denying appellant's PCRA
relief without [an] evidentiary hearing on appellant's
claim(s) of trial counsel's ineffectiveness?
II. Should appellant's PCRA proceedings be remanded for
amendment based on PCRA counsel's pretexted tendered
defense and perfunctory performance summarized in the
following dereliction of duty and breach of professional
responsibility to the lawyer/client relations, rendered his
representations below ineffective assistance of counsel,
forfeiting and depriving appellant of a constitutional and
meaningful review under the post-conviction relief
April 19, 2016 the Superior Court concluded that the
petitioner had waived the issues he was seeking to raise and
affirmed the post-conviction court. On September 28, 2016
leave to appeal was denied by the Pennsylvania Supreme
petition filed here on June 13, 2017, Butler contends he is
entitled to relief on the following grounds:
1. Ineffective assistance of counsel. Violation to proceed to
trial with effective qualified counsel appointed by the
a. Trial counsel was not qualified to be appointed to a
felony case like mine.
b. He didn't do any investigations to prove my case and
was consistently looking for a plea to please the court to
further his career.
c. Trial counsel withheld exculpatory evidence namely my tax
information and [he knew] the D.A. was withholding my
transaction reporting requirement from the bank. The D.A. had
it in her possession, but claimed it didn't exist and
Michael Worgul knew.
d. Appeal counsel would not file ineffective assistance on
appeal even though I filed ineffective against trial counsel
before my trial began.
2. Errors of court.
a. Imposed an excessive sentence outside the guidelines.
b. Abused its discretion by double calculations of points.
c. Sentenced me as a level 5 on the gravity scale when in my
post-sentence investigation they knew I was a level 4 to them
but really a level 3 and they did this to enhance sentence.
d. Allowed D.A. to prejudice the jury by allowing state
trooper to testify to this case.
3. Double jeopardy of possession charge and conspiracy to
a. The charge of possession in conspiracy to possess should
have merged for sentencing purposes because they are the same
charge just given different names. I was not found guilty of
actual possession but of constructive possession and found
guilty of conspiracy to possess. This is not a criminal
conspiracy because there is no other overt act beyond someone
I [knew] possessed cocaine. They say we conspired to get
cocaine and the cocaine was obtained by someone I know, but
was miles away asleep never near this crime and consecutive
charges of these offenses is a ploy to go outside the
guidelines because I wouldn't plea to bogus charges.
4. Violation of my Rule 600 180/365 days.
a. The Commonwealth continuously held me on these charges
past 180 days without giving me a nominal bond then held me
beyond 365 days continuously for these same charges. The
courts keep lying trying to say the time started at the
second indictment which is the same charges as the first and
I was continuously held on the charges. I was not released
and was still held continuously violating my right to a
speedy trial and giving me a trial knowing they were in
violation of my Rule 600 rights. I was continuously held for
2 years for trial.
5. Abuse of discretion for the Commonwealth seeking and
approving mandatory minimums in my case and approving these
mandatory minimums, but never presenting the fact to the jury
to be decided on by the jury. This makes it constitutionally
invalid to give me mandatory sentences and enhancements at
the same time and not present it to a jury. The Commonwealth
claims it did not enhance my sentence but it is ...