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Butler v. Allegheny County Court of Common Pleas

United States District Court, W.D. Pennsylvania

June 13, 2018

MICHAEL BUTLER, HY-1123, Petitioner,
v.
ALLEGHENY COUNTY COURT OF COMMON PLEAS, et al., Respondents.

          REPORT AND RECOMMENDATION

          Robert C. Mitchell United States Magistrate Judge

         I. RECOMMENDATION:

         It is 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 denied.

         II. REPORT:

         Michael 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 10, 2009.[1]

         An appeal was filed in the Superior Court in which the questions presented were:

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 Mr. Tejada?
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 drug paraphernalia?
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 impact?
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?[2]

         In a memorandum filed on April 20, 2011, the Superior Court remanded for resentencing and affirmed on all other grounds.[3] Butler filed a petition for allowance of appeal which was denied by the Pennsylvania Supreme Court on September 26, 2011.[4]Pursuant to the mandate of the Superior Court, on October 27, 2011 Butler was resentenced to an aggregate sentence of 16 to 32 years.[5]

         An appeal was filed in the Superior Court in which the issue raised was:

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?[6]

         On June 5, 2013, the Superior Court affirmed.[7]

         Butler then filed a post-conviction petition which was dismissed on May 5, 2014.[8] 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 act?[9]

         On 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.[10] On September 28, 2016 leave to appeal was denied by the Pennsylvania Supreme Court.[11]

         In his petition filed here on June 13, 2017[12], 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 courts.
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 possess.
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 ...

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