Warren Butler v . USA CV-10-216-PB 11/23/10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Warren Butler

v. Case N o . 10-cv-216-PB Opinion N o .

United States of America

MEMORANDUM AND ORDER

Warren Butler pleaded guilty to conspiracy to commit bank

fraud and aggravated identity theft. After Butler was

sentenced, but while his appeal was pending, the Supreme Court

held in Flores-Figueroa v . United States, 129 S . C t . 1886 (2009)

that the crime of aggravated identity theft requires proof that

the defendant knew that he was misusing another person’s

identification documents. Id. at 1894. Butler invokes Flores-

Figueroa in claiming that his guilty plea must be set aside. He

also argues that his sentence was based on an incorrect guideline

sentencing determination. I . BACKGROUND1

Butler was indicted in October of 2007 for his role in a

scheme to defraud several of Bank of America’s customers.

Butler was able to acquire customer account numbers and other

personal identification information from a Bank of America

teller who provided the information in exchange for a payment of

approximately $500 per customer. Butler sent the customer

information to an accomplice who created counterfeit driver’s

licenses in the account-holders’ names. Those counterfeit

identities were then used to fraudulently withdraw funds from

the targeted accounts. Overall, Butler’s contact at Bank of

America estimated that she accessed approximately forty accounts

for Butler.

Butler pleaded guilty to conspiracy to commit bank fraud

and aggravated identity theft on October 3 1 , 2007. He was

sentenced to a fifty-one month term of imprisonment on the

conspiracy charge and, as the identity theft statute requires,

he received a consecutive twenty-four month sentence on the

identity theft charge.

1 The background facts concerning Butler’s crimes are drawn from the statement of facts offered by the government in support of Butler’s proposed guilty plea.

2 Butler unsuccessfully appealed his sentence and filed the

current motion after his appeal was resolved. He bases

his request for relief on

.

I I . STANDARD OF REVIEW

Section 2255 allows a prisoner in federal custody to move

for relief from his conviction and sentence on the grounds “that

the sentence was imposed in violation of the Constitution or

laws of the United States, or that the court was without

jurisdiction to impose such sentence, or that the sentence was

in excess of the maximum authorized by law, or is otherwise

subject to collateral attack.”

(a).

Where no evidentiary hearing is held on a § 2255 motion,

the court “take[s] as true the sworn allegations of fact set

forth in the petition unless those allegations are merely

conclusory, contradicted by the record, or inherently

incredible.” Owens v . United States,

8 , 57 (1st Cir.

2007) (internal quotation marks and citation omitted). In

reviewing a pro se motion, this Court is obliged to construe the

pleading liberally. See Ayala Serrano v . Lebron Gonzales,

, 15 (1st Cir. 1990) (following Estelle v . Gamble,

7 , 106 (1976) to construe pro se pleadings liberally in

favor of that party). This review ensures that pro se pleadings

3 are given fair and meaningful consideration. See Eveland v .

Dir. of C.I.A.,

6 , 49 (1st Cir. 1988).

III. ANALYSIS

A. The Guilty Plea

Butler claims that his guilty plea must be set aside in

light of Flores-Figueroa because: (1) the government’s factual

proffer did not demonstrate that Butler knew that he was

misusing an actual person’s identification documents; (2) Butler

did not understand when he pleaded guilty that knowing misuse of

an actual person’s identity was an element of the crime of

aggravated identity theft; and (3) Butler’s lawyer was

constitutionally ineffective because he failed to anticipate

Flores-Figueroa.

Because Butler did not challenge his guilty plea on direct

review, he is barred from raising his first two arguments in a

§ 2255 motion unless he can establish both “cause” for the

procedural default and “actual prejudice.” 2 Owens,

A procedural default may also be excused by a showing of “actual innocence.” Bousley v . United States,

(1998). Actual innocence requires a showing that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted [the defendant].”

at 623

4 57. Although Butler cannot be faulted for failing to present

his ineffective assistance of counsel claim in his direct

appeal, see United States v . Fornia-Castillo,

(1st

Cir. 2005) (recognizing that ineffective assistance claim can be

raised “only on collateral attack in a proceeding pursuant to 28

U.S.C. § 2255” when facts supporting claim are undeveloped), he

cannot succeed on this claim either without showing that he was

prejudiced by counsel’s claimed error. Peralta v . United

States,

4 , 79 (1st Cir. 2010).

The standard for prejudice in the procedural default

analysis is whether “‘there is a reasonable probability that the

result of the trial would have been different’ absent the

error.” Prou v . United States,

7 , 49 (1st Cir. 1999)

(quoting Strickler v . Greene,

(1999)). The

prejudice standard for an ineffective assistance claim

specifically requires that there is “[a] reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v .

Washington,

(1984). Due to the nearly

identical language of these two tests, they have been found to

(internal quotations omitted). As I explain below, Butler is in no position to claim that he is actually innocent.

5 be “one and the same.” Prou,

9 . Because Butler

must show the same prejudice for both his procedurally defaulted

claims and his ineffective assistance claim, I will address the

issue of prejudice first.

The defendant in Flores-Figueroa was convicted of

aggravated identity theft under the same statute that Butler

pleaded guilty to in this case, 18 U.S.C. § 1028A. The statute

imposes a mandatory consecutive two-year prison term upon an

individual convicted of other crimes i f , during or in relation

to those other crimes, the defendant “knowingly transfers,

possesses, or uses, without lawful authority, a means of

identification of another person.”

(A).

Flores-Figueroa held that the statute requires the Government to

show that the defendant knew that the “means of identification”

used did, in fact, belong to another person. Flores-Figueroa,

129 S . C t . at 1888. In that case the defendant presented his

employer with counterfeit Social Security and alien registration

cards, but there was no evidence as to how he had obtained those

numbers, and thus that he was aware that the numbers actually

belonged to other people. Id. at 1889. The Supreme Court held

that without that showing the defendant could not be convicted.

Id. at 1894.

6 The facts of this case are easily distinguishable from

Flores-Figueroa. As Butler admitted in his guilty plea, he knew

that the account information he used to commit his crimes came

directly from a Bank of America employee with access to the

personal account information of Bank of America customers. In

fact, Butler not only knew that the information he was receiving

belonged to real people, he knew who those real people were.

This was a necessary part of the scheme, because Butler took the

account information he was provided and used it to create

counterfeit identities using the personal information (name,

account number, etc.) of those real Bank of America customers.

Because Butler’s scheme relied on withdrawing funds from

existing bank accounts, it was only capable of succeeding if it

was based on real identities. Butler’s knowledge that the means

of identification he used belonged to real people can be easily

inferred from the facts he admitted to when he pleaded guilty.

Since the facts that Butler admitted to when he pleaded

guilty clearly establish that Butler knew when he committed the

crime that he was misusing an actual person’s identity, he is in

no position to challenge the adequacy of the factual proffer

that was then before the court. Nor can he establish that he

was prejudiced by his claimed failure to understand when he

7 pleaded guilty that proof that he had knowingly misused the

identity of an actual person was an element of the crime of

identity fraud.

This is particularly true in light of an order I issued

requesting that Butler file a memorandum explaining in detail

how the outcome of his plea negotiations or a resulting trial

could have been different in light of the Flores-Figueroa

holding. See Order, Doc. N o . 7 , at 1 . Butler’s response failed

to put forward any argument specifically showing how he was

prejudiced by his alleged failure to anticipate Flores-Figueroa.

While he alleged in a conclusory fashion that he would not have

pleaded guilty if he was aware of the additional requirements of

Flores-Figueroa, he failed to identify any factual circumstances

or legal arguments that might support his allegation. Even

construing Butler’s pleadings liberally, his bare allegation of

prejudice is insufficient in light of the specific facts of this

case. See Owens,

7 . Accordingly, there is not a

reasonable probability that the result of the proceeding would

have been different had the claimed errors not been committed.

In light of my finding that Butler was not prejudiced, he

fails to fulfill that prong of both the procedural default

standard and the ineffective assistance standard. It is

8 therefore not necessary to address whether there was cause for

his procedural default or whether defense counsel’s assistance

was deficient. See United States v . Frady,

, 167

(1982) (finding it “unnecessary” to determine whether cause

existed for procedural default where the Court was “confident he

suffered no actual prejudice”); Hill v . Lockhart,

2 ,

60 (1985) (declining to address whether counsel’s performance

was deficient in an ineffective assistance claim where the

defendant was not prejudiced).

B. Validity of Butler’s Sentence

Butler also attacks his sentence by claiming that I

improperly calculated his guideline sentencing range. I need

not consider the merits of this argument because the appellate

and collateral review waiver in the plea agreement precludes him

from challenging this aspect of his sentence.

Butler waived the right to collaterally challenge his

conviction when he pleaded guilty. Although the waiver was

subject to specified exceptions, none apply here. As I have

explained, Butler has failed to credibly claim that he would not

have entered his guilty plea had he known that the government

had to prove that he knowingly misused another person’s identity

documents. Thus, he cannot escape the appellate and collateral

9 review waiver by claiming that his guilty plea was improvident

or that counsel was constitutionally ineffective when he advised

Butler to plead guilty. Nor can he claim that Flores-Figueroa

embodies a new rule of law that renders the waiver ineffective.

First, Supreme Court doctrine is clear that a decision

interpreting the text of a statute does not constitute a “new

legal principle.” See Bousley,

(Stevens, J.

concurring) (noting that a decision construing a statute was not

a “new rule of law” because “‘judicial construction of a statute

is an authoritative statement of what the statute meant before

as well as after the decision of the case giving rise to that

construction’”) (quoting Rivers v . Roadway Exp., Inc.,

(1994)). Second, Butler’s challenges to his sentence

are not based on Flores-Figueroa. Thus, they are not excepted

from the appeal waiver even if the holding of Flores-Figueroa

qualified as a new legal principle.

Waivers of collateral review rights have been recognized as

valid in this circuit as long as procedural safeguards are met.

United States v . Teeter,

4 , 25-26 (1st Cir. 2001). In

this case, Butler’s plea agreement included a waiver of the

right to directly appeal or collaterally challenge “defendant’s

guilty plea and any other aspect of defendant’s conviction . .

10 . .” [United States v . Butler, 07-cr-67-PB,] Plea Agreement

[doc n o . 52] at 1 2 . At his plea hearing Butler was informed

that he was “giving up [his] right to appeal [his] conviction

and sentence and to challenge it in a collateral review

proceeding.” Tr. Of Waiver of Indictment and Plea to

Information Hr’g at 1 3 . Butler was asked if he understood, and

responded “yes.”

In light of the appellate and collateral

review waiver, Butler’s attempts to challenge his sentence, like

his attempts to challenge the validity of his guilty plea, fail.

IV. CONCLUSION

For the foregoing reasons, I deny Butler’s motion for

relief under § 2255. Because I have denied the petition on

procedural grounds, Butler is not entitled to a certificate of

appealability unless he can show both that “the soundness of the

procedural ruling is debatable and . . . [that] the [underlying]

constitutional claim is also colorable. In re Smith,

(1st Cir. 2006) (quoting Mateo v . United States,

9 , 40 (1st Cir. 2002). For the reasons set forth in this

Memorandum and Order, Butler has failed to meet this standard.

Accordingly, the court declines to issue a certificate of

11 appealability. The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

November 2 3 , 2010

cc: Warren Butler, pro se Aixa Maldonado-Quinones, Esq.

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