United States District Court, D. Alaska
ORDER RE SECTION 2255 PETITION
L. GLEASON UNITED STATES DISTRICT JUDGE
the Court is Defendant Michael Butler's Motion to Vacate,
Set Aside or Correct Convictions and Sentence Pursuant to 28
U.S.C. § 2255, filed on April 13, 2017 at Docket 683.
The Government responded at Docket 708.
November 4, 2014, a jury found Mr. Butler guilty of ten
counts of mail fraud in violation of 18 U.S.C. § 1341,
one count of money laundering conspiracy in violation of 18
U.S.C. § 1956, and one count of conspiracy to make false
statements regarding the distribution of cigarettes in
violation of 18 U.S.C. § 2342(b), and
2344(b). The jury found Mr. Butler's
codefendant, Insook Baik, not guilty on all
counts. On March 13, 2015, this Court entered a
final judgment of conviction, after sentencing Mr. Butler to
36 months' imprisonment, concurrent on all counts,
followed by 36 months of supervised release.
Butler appealed to the Ninth Circuit. He argued that the
district court erred in refusing to compel the testimony of
another codefendant, Kimberly Sims-Crandell, at
trial. Mr. Butler also asserted that there was
insufficient evidence to satisfy the mailing requirement for
the mail fraud convictions. The Ninth Circuit rejected these
arguments and affirmed Mr. Butler's convictions in August
2016. The mandate was issued on September 1,
Butler was self-represented when he initially filed this
petition in April 2017. On May 16, 2017, Mr. Butler filed a
Motion to Appoint Counsel. On May 26, 2017, the Court granted the
motion and appointed an attorney to represent Mr.
Butler. On September 14, 2017, the attorney filed
a Notice of No. Amendment to 28 U.S.C. § 2255
Petition. On January 30, 2018, the Court granted the
attorney's motion to withdraw; Mr. Butler is currently
Butler asserts that his trial counsel was ineffective in
three respects: (1) during jury selection, a juror admitted
to having a personal relationship with one of the ATF agents
involved in the investigation and Mr. Butler's trial
counsel failed to disqualify the juror; (2) a different juror
whose husband had a physical altercation with a member of the
Hells Angels Motorcycle Club was biased due to a photo of Mr.
Butler shown at trial wearing a Hells Angels patch and
counsel failed to object; and (3) a second defendant was
found not guilty at trial and Mr. Butler's trial counsel
did not follow up regarding the inconsistency of verdicts.
Mr. Butler also asserts that he was unable to question
codefendant Ms. Sims-Crandell, whom he describes as critical
to Mr. Butler's defense.
Ineffective Assistance Claims
Butler's first ineffective assistance claim asserts the
One of the jurors had a personal relationship to one of the
ATF agents who was involved in the investigation. That agent
presented evidence during the trial. The relationship was
discovered during the jury selection process. That juror
should have been disqualified, but was allowed to
Government responds that Mr. Butler has failed to establish
that his attorney's performance was deficient and that he
suffered any prejudice.
prevail on an ineffective assistance claim, a petitioner must
satisfy the two-prong Strickland test, which
requires a showing of both deficient performance and
resultant prejudice. Deficient performance requires a showing
that trial counsel's representation fell below an
objective standard of reasonableness as measured by
prevailing professional norms. There is a “strong
presumption that counsel's conduct falls within the wide
range of reasonable professional
assistance.” To establish prejudice, a petitioner
must show a reasonable probability that “but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Failure to
meet either prong is fatal to a petitioner's
dire, the following discussion with the juror took place:
The Court: There was a list that Mr. Collins read, there was
a list that Mr. Cavanaugh read about expected witnesses, and
does anyone know or have any relationship with any of those
Prospective Juror 12: Hi. Number 12. I know ATF agent Sarah
Foreman. Her older sister was my best childhood friend, and
currently, her parents live across the street from my
parents. So our two families have known each other since I
The Court: Anything about that that would make it difficult
for you to hear this case fairly?
Prospective Juror 12: I don't think so.
The Court: Thank you.
other discussion of Juror 12 was made during jury selection.
Neither counsel for Mr. Butler nor counsel for Ms. Baik moved
to strike the juror; nor did counsel for either defendant use
a peremptory challenge to excuse her. Each lawyer was given
an opportunity for follow up questions. Mr. Butler has not
demonstrated that his lawyer's failure to object to the
juror was constitutionally deficient
performance. Moreover, Mr. Butler has not provided
any facts or evidence that the juror was in fact biased
against him. Therefore, Mr. Butler has also not established
that he was prejudiced by the juror's alleged bias and
his counsel's failure to excuse her. Accordingly,
his claim for ineffective assistance of counsel on this
ground is unavailing.
Butler also asserts that he was denied effective assistance
of counsel based on the potential bias of a different juror.
He asserts as follows:
The court allowed the disclosure that I am a member of the
Hells Angels Motorcycle Club. This disclosure came in the
form of photographs of me wearing my [Hells Angels] patch and
insignia that were shown to the jury at the start of trial.
My involvement with the Club was not relevant to the
investigation or the case. After this disclosure, a second
juror failed to notify the court that her husband had been in
a physical altercation with a member of the Club previously.
It is unreasonable to think the husband did not discuss this
with his wife. It is unreasonable to believe she could be an
unbiased or impartial juror after discovering that I am a
Hells Angel. Allowing the photos of me was unnecessary to the
trial. I did not have a fair and impartial
Government responds that “[o]n its face, the
ineffective assistance of counsel claim fails because [trial
counsel's] performance cannot be deficient if he was not