Petition for Writ of Certiorari — Bruce Harland Butler, Petitioner v. Michigan

Supreme Court briefMar 8, 2021

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28-841

No.

supreme Court, U S

F/LED

IN THE

MAR - 8 2821

SUPREME COURT OF THE UNITED STATES

■2ff!£g.OFTHE CI.FBk-

_ Bruce Harland Butler

— PETITIONER

(Your Name)

vs.

St-,qt~p nr Michigan

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

____ :______MTr.vmcAM rnnuT of \ppf.at.s_____________________

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Bn ir.p Harl anrl Ri it-1 pr

(Your Name)

G. Robert Cotton Correctional Facility

(Address)

3510 N. Elm Road

Jackson, Michigan 49201

(City, State, Zip Code)

mu 25

906-387-5000

(Phone Number)

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QU'ESTION(S) PRESENTED

1).

WHETHER THE LOWER COURT'S DECISION WAS CONTARY TO CLEARLY

SEE

ESTABLISHED UNITED STATES SUPREME COURT PRECEDENT?

CARPENTER v. UNITED STATES, 138 S. Ct. 2206 (2018) 2018

US LEXIS 3844; 201 L. Ed.2d 507.

2).

SHOULD CARPENTER v. U.S, 138 S. Ct. 2206 (2018) BE GIVEN

FULL RETROACTIVITY STATUS OF LAW IN MICHIGAN PURSUANT TO

MCR b.502 (G)(2)?

3).

WAS MR. BUTLER DENIED DUE PROCESS AND A FAIR TRIAL BY THE

INTRODUCTION AT TRIAL OF UNAUTHENICATHTfjj HISTORICAL CELL

SITE LOCATION INFORMATION (CSLI) OBTAINED WITHOUT A VALID

PROBABLE CAUSE WARRANT TO AT&T IN VIOLATION OF THE FOURTH

AMENDMENT; ALTERNATIVELY, TRIAL AND APPELLATE COUNSEL WERE

INEFFECTIVE FOR FAILING TO OBJECT AND INVESTIGATE THE UN

AUTHENTICATED (CSLI) DOCUMENTS, DENYING MR. BUTLER HIS

STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER U.S. CONST.

IV, VI, XIV; CONST. 1963, Art 1 §§ 11, 15, 17, 20.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the Caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

H-

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

Decision of State Court of Appeals

APPENDIX B

Decision of State Trial Court

APPENDIX C

Decision of State Supreme Court Denying Review

APPENDIX D

Memorandum and Order granting Petitioner's Mo

tion to hold in Abeyance and Staying Proceed

ings .

Original (Attachment T)

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

See 4 attached pages

CASES

STATUTES AND RULES

OTHER

PAGE NUMBER

TABLE OF AUTHORITIES

Burger v Kemp, 483 US 776 (1987)

Carpenter v United States, 138 S.Ct. 2206 (2018)^ 7-23, 30,32,33,34,35,3s

Com. v Augustine, 467 Mass 230 4NE3d 846 (2014)_

Corsa v Anderson, 443 F. Supp 176 (ED Mich 1997)

Dando v Yukins, 461 F.3 791 (CA 6 2006)

Evitts v Lucey, 469 US 387 (1985)____ _

Fahy v Connecticut, 375 US (1963) _

Fiore v White, 531 US 225 ___ __ _

Franks v Delaware, 438 US 154 __ ^_

Gravely v Mills, 87 F3d 779 (CA 6 1996)

Griffith v Kentucky, 479 US 314__

8-, 16,17, 18

In Ref. US ex rel of historical cell site data,

_15, 17

747 Supp. 2d 827

In Ref. US order directing provider of electronic

communication services to disclose records to gov't. 620, F3d 304___17

In Ref. US order authorizing the release of historical

17l.

cell-site info, 736 F. Supp. 2d 578

Ivory v Jackson, 509 F3d 284 (CA 6 2007) _

Joshua v Dewitt, 341 F3d 430 (CA 6 2003)

Katz v United States, 389 US 347 (1967)_

8,12,14,15,22

Kimmelman v Morrison, 477 US 635 (1986)Kowlak v US, 645 F2d 534 (CA,6 1981) _

Kylio! v US, 533 US 27 (2001)

Lafler v Cooper, 566 US 156_

Mahdi v Bagley, 552 F3d 631 (CA 6 2004)___

McFarland v Yukins, 356 F3d 688 (CA 6 2004)

Monzo v Edwards, 281 F3d 284 (CA 6 2002)

Murray v Carrier, 477 US 307 (1986) __

—a.

— 34

TABLE OF AUTHORITIES (cont.)

Northrop v Tippett, 265 F.3d 372 (6th Cir. 2001)

People v Ackerman, 257 Mich App 439

People v Barnes, 502 Mich 265

___

People v Berwerdorf, 438 Mich 55 (1991 i

People v Caballero, 184 Mich App 636 (I990)

People v Dezak, 107 Mich App 78

People v Dillon, 296 Mich App 506_

People v Doyle, 451 Mich 93 (1996)

Peoplfl v Dudgen, 433 Mich 490 (1989)

People v Franklin, 500 Mich 92

People v Ginther, 390 Mich 436 (1973)

People v Hale, 2018 Mich App LEXIS 1302

People v Hampton, 384 Mich 669 (1971)...

People v Henry, 239 Mich 140

People v Hyde, 285 Mich App 428___

People-r.^ahner . 433 Alich. 4=90 (1994) _______•.

People v Kamin, 405 Mich 482 (1979)_ _

People v LeBlanc, 465 Mich 575__, __

____

People v Mead, 503 Mich App 205__

—

People v Newaon, 173 Mich App 160 (1988)___

People v Pickens, 446 Mich 298 (1994)___

People v Rosengren, 159 Mich App 492 (1987)__

People v Storch, 176 Mich App 414 (1989)

People v Swain, 288 Mich App 609 (2010),______

People v Ullah, 216 Mich App 669 (1996)____

People v Walker, 2019 Mich App LEXIS 2531___

Riley v California, 573 US 373 (2014)_ _____

Schlup v Delo, 513 US 298 (1995)....

....... .

Scott v Mitchell, 209 F3d 854 (CA6 2000).

Smith v Maryland, 442 US 735 (1979)___

14,32

... 28

_ 8,18

_1 7,20,37

_ 7,19

10,11,13

,34

_____ 31

9,10,11,15

TABLE OF AUTHORITIES (cont,)

Smith v Murray, 477 US 527 (1986)__ _ ___

Smith v Robbins, 528 US 529 (2000)___

Strickland v Washington, 466 US 668 (1984)

Teague v Lane, 489 US 288 (1989)___

US v Caira, 833 F.3d 803 (7th Cir. 2016)

US v Davis, 754 F.3d 1205-.......

US v Graham, 824 F.3d 421 (4th Cir. 2016)

US v Johnson, 457 US 537 (1982)__

US v Jones, 565 US 400 (2012)______

US v Knotts, 460 US 276 (1983)___

US v Leon, 468 US 897 (1984).____

US v Miller, 425 US 435 (1976)..

US v Peltier, 422 US 531 (1975)____

US v Powell, 943 F. Supp. 2d 759 (E.D. Mich 2013).

US v Thompson, 866 F.3d 1149 (10th Cir. 2017)___

Washington v Smith, 219 F.3d 620 (CA7 2000) ___

Workman v Tate, 957 F.2d 1339 (CA6 19921^_____

Wong Sun v US, 371 US 471 (1963)___

28,29,30,31,33,34.

8,12,15,18,

.17

8., 16

9,10,11,12,15

___9,11,12,15

... 25,26

9,10,11,12,15

__ * 26

_ 17

.30

CONSTITUTIONS & STATUTES

Mich Const. 1963 Art. 1 §§11__

Mich Const. 1963 Art. 1 §§15

Mich Const. 1963 Art. 1 §§17__

Mich Const. 1963 Art. 1 §§20.

US Constitution IV

US Constitution VI __

US Constitution XIV„_

20,22,23,26

------- -20,22

....- 20,22

.=-.20,22

20,22,23,26,34

____ 20,28,31

__ 20,22;28,32

TABLE OF AUTHORITIES (cont.)

CONSTITUTION & STATUTES

18 USC §2701 et.seq.

18 USC |

2703(d)

__ ______ 21,25

.11,12,18,22,23

18 USC. §

2703(d)(2)

47 USC §222(c)(1)______

47 USC §222(F)(1)(1996)

47 USC §222(F)(1999)

__ 15,18

.13,16,18

,13,14,16,18

RULES

MCR 6.500

4,33

MCR 6.502(G)(2).

-.. - 5,6,7,33

MCR 6.508(D)(2), _______

MCR 6.508(D)(3)(B)___

MCR 6.508(D)(3)(i)(iii)

;

__ 33

.33

MCR 7.316(A)(3)MCR 7.316(B)

MCL 780.,654(1)

MRE 80$<6T__

MRE 902(11)

__ 32,35

_ 32,35

___ _ 26 ■

22,27

OTHER AUTHORITIES

145 Congrec. H.9558-01 at H.9860, H.9862, H9863_ __

WCPSA (Wireless Communication and Public Safety Act).

__ 13,14

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

;pr,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

I or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix . v __to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[$] is unpublished.

.MICHIGAN COURT.OF APPEALS

The opinion of the _

court

appears at Appendix _A __to the petition and is

[ ] reported at

I or,

[ ] has been designated for publication but is not yet reported; or,

[x] is unpublished.

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was______________________

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: ____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including _

(date) on

. (date)

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix _____

o } ?n?i

[ ] A timely petition for rehearing was thereafter denied on the following date:

, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

STATEMENT OF THE CASE

This is a post-conviction appeal from Petitioner, Bruce H. Butler, who after

his 1st jury trial ended in a mistrial was subsequently convicted in the 6th Ciruit/Oakland County Court before the Honorable Rae Lee Chabot of first-degree mur

der, MCL 750.316 and possession of a firearm during the commission of a felony,

MCL 750.227b. Petitioner's judgment of conviction was 09-23-2013 in Case No. 2011237958-FC, with a sentencing 11-05-2013 to life without parole. Petitioner's di

rect appeal from the judgment of conviction was to the Michigan Court of Appeals,

Case No. 319548. The Michigan Court of Appeals denied appeal on 08-27-2015 with

the citation to the case as 2015 Mich. App. LEXIS 1649.

Petitioner's further review to the Michigan Supreme Court for Leave to AppeaL

was denied on 05-02-2016 with the citation to the case as 2016 Mich. LEXIS 762.

petitioner then filed MCR 6.500, Motion for Relief from Judgment on 04-12-2017 in

the 6th Circuit/Oakland County Court, which qas denied on 07-21-2017 with Case No.

2011-237958.

Petitioner filed Application for Leave to Appeal to the Court of Appeals on

01-18-2018. The Michigan Court of Appeals denied Leave to Appeal on 05-31-2018 with

Case No. 342063. Petitioner then filed Application for Delayed Leave to Appeal to

the Michigan Supreme Court on 07-20-2018 with the Case No. 156142.

While Petitioner's Delayed Application to Appeal was pending in the Michigan

Supreme Court. The United States Supreme Court announced there ruling in Carpenter

v. United States, 138 S. Ct., 201L. Ed. 2d 507 (2018), immediately following the

the Petitioner filed a Motion to add a Fourth Amendment, violation--pursuant to MCR

*7.316 A(3) and B, this new issue VIII in a question format was granted in pact, and

subsequently Petitioner's delayed application for leave to appeal was denied by the

Michigan Supreme Court in Case No. 158142 & (25) on 02-04-2019.

Petitioner filed a Motion to Hold in Abeyance and Stay Proceedings in his Habeas

Corpus Petition under 28 U.S.C. § 2254 65 allow petitioner to' exhaust the Fourth Ame

ndment tissue raised by Carpenter, by submitting a MCR 6. 502(G)(2) successive Motion

for Relief from Judgment based on newly presented evidence and the retroactive cnange

in law announced in Carpenter v. United States, 138 S. Ct. 2206, 201 L. lid. 2d 5u7.

Petitioner's Motion to Hold in Abeyance and Stay Proceedings was Granted and the

Writ of Habeas Corpus stayed pending completion of Petitioner's State Application for

post-conviction review was on 04-08-2.019 with the Case No. 19-10677 by the Honorable

Avern Cohn, United States District Judge. (APPENDIX 0)

Petitioner proceeded to file MCR 6. 502-£G)(2) successive motion for relief from

judgment on 06-18-2019 raising issues that were not raised in his first motion for

relief from judgment on 04-12-2017. The Trial Court, Michigan Court of Appeals Case

No. 353475 and the Michigan Supreme Court denied Application for Leave to Appeal in

Case No. 161783 & 20 on

02-02-2021.

Now conies Petitioner, Bruce H. Butler prayfully asking this Honorable Court to

grant Petition for Writ of Certiorari.

REASONS FOR GRANTING THE PETITION

1. The lower court decisions conflicts with the US Supreme Court

decision in Carpenter v. United States, 13S S. Ct. 2206 (2018)

2. The lower Court decision is contary 'to 'clearly established US

Supreme Court precedent. See .Caroenter v. United States. 138

S/Ct. 2206.. .2018 US LEXIS 3844; 201 L. Ed. 2d 507.

3. The Jjpwer ..Court decision is in conflict with the decision of

Appeal Court United States v. Leyva, 20.18 U.S. Dist. LEXIS

199327; 2018 WL 6167890.

----- -4. Carpenter v. United Sta tes.- should be given full retroactivity

Status of Law in Michigan pursuant to MCR 0.502(G)(2).

5. This case is not only important to many or millions of others

similarily situated. See Katz v. United States 389 US 347,351.

6. The facts of my case is identical to Carpenter' v. US.

7. Mr. Butler prays this Honorable Court grant reli@i? based on

his Constitutional issues.

I. DEFENDANT CAN SHOW HE IS ENTITLED TO FILE A

SUCCESSIVE MOTION FOR RELIEF FROM JUDGEMENT

BECAUSE CARPENTER V. UNITED STATES 138 S.CT.

2206 (2018) SHOULD BE GIVEN FULL RETROACTIVITY

STATUS OF LAW IN MICHIGAN PURSUANT TO MCR

6.502(G)(2).

STANDARD OF REVIEW

Appellate Courts will review a Trial Court's decision on a successive motion

for Relief from Judgement that is made under MCR 6.502(G)(2)t People v. Barnes, 502

Mich 265i

The issue whether a United States Supreme Court decision applies retroactively

presents a question of law that is review De Novo.

The Appellate Court reviews for

an abuse of discretion in the Trial Court's ultimate ruling on a motion for Relief

from Judgement, People v. Walker. 2019 Mich App. LEXIS 2531.

ARGUMENT

This Court should grant Defendant's successive motion for Relief from Judgement

where Defendant established a retroactive change in law that applies to the instant

case pursuant to the United States Supreme Court decision in Carpenter v. United

States, 138 S.Ct. 2206 (2018) that a retroactivity be applied while on collateral

review.

The Michigan Supreme Court recently stated that a person can raise a Fourth

Amendment claim if that person can show under the totality of circumstances that he

or she had a legitimate expectation of privacy in the area searched that society

recognizes as reasonable.

People v. Mead, 503 Mich 205 (2019).

Carpenter v. Unitad States, 138 S. Ct. 2206 (2018)

Should be given full Retroactivity

In this case, the ruling announced in Carpenter should be given full

retroactive effect, because a defendant ie entitled to retroactive application

of a new decision on collateral relief if it resulted from the application of

settled leu to new facts (i.e. the esse did not announce a new rule of leu).

Teague v. Lane. 489 US 2B8, 301 (1989). Under any retroactivity analysis,

(see, Teague, supra{Griffith v. Kantucky, 479 US 314 (1987){People v Hampton,

384 Mich 669 (1971){People v. Karoln, 405 Mich 462, 483 (1979).), the Carpenter

decision did "not" announce a new rule.

Therefore, whether applying the Teague teat, or the analysis of Griffith

v. Kentucky, supra. Carpenter is fully retroactive because Carpenter ia not a

"new rule." When a decision of this Court merely applied settled precedents to

naui and different factual situations [the decision applies retrospectively].

Griffith, 479 US at 324 (citing U.S. v.

Johnson.

457 US 537, 549 Hn.7

(1982).).

Teague announced the following for the Standard of what a new rule is. In

general, a case announces a new rule when it "breaks new ground" or imposes a

"new

obligation"

the

States

the

Federal

government.

To put

differently, a case announces a nBu rule if the result was not dictated by

"precedent" existing at the time the defendant's conviction became final.

Teague,

supra.

In Carpenter v. United States,

supra • f

the United States

Supreme Court, did not announce a new rule nor impose a new obligation on the

State or Federal government. The Courts have long recognized that the people

have a right to a reasonable expectation of privacy, and that the Fourth

Amendment protects that right. See Katz v. United States. 389 US 347 (1967),

"the Fourth Amendment protects not only property

S’:

interests but certain

expectation^*of privacy aa well." Id. at 351. Thus, when an Individual "seek

to preserve ^something aa private," and his expectation of privacy la "one that

society is prepared to recognize ae reasonable," official intrusion into that

sphere generally qualifies as a search and requires e warrant supported by

probable cause. Carpenter, 13B. S. Ct. at 2213 (quoting Smith v. Maryland, 442

US 735, 740 (1979)). This language within Carpenter is clear and precise.

In their analysis they found that: The digital data at issue-personal

location information maintained by a third party-did not fit 'neatly

undar

existing precedents but does lie between two lines of cases. One set addresses

a person's expectation of privacy in his physical location movements. See,

B-9-# United States v. Jones. 565 US 400 (2012)(five justices concluding that

privacy concerns would be raised by GPS tracking){ also see United States v.

Knotts, 460 US 276, 283-284 (1983)(the Court reserved thB question whether

"different constitutional principles may be applicable" if "twenty-four hour

surveillance of any citizen of this country [ware] possible."II. The other

addresses a person's expectation af privacy in information voluntarily turned

over to third parties. See United States v

Hiller. 425 US 435 (1976)(no

expectation of privacy in financial records held by a bank), and Smith v.

Maryland, 442 US 735 (1979)(no expectation of privacy in records of dialed

telephone numbers conveyed to telephone compeny). Carpenter, 133 S. Ct. at

2214^2216.

The Court went on to say: Tracking a person's past movements through CSLI

partakes of many of the qualities of GPS monitoring considered in Jones-it la

detailed, encyclopedic, and effortlessly compiled. At the same time, however,

the fact that the individual continuously reveals his location to his wireless

carrier implicetea the third-party principles of Smith and Hiller. Given the

unique nature of cell-site records, the Court declined to extend Smith and

■H

Millar to cover them.

A majority of the Court has already recognized that individuals have a

reasonable expectation of privacy in the whole of thalr physical movements.

Jones, 565 US at 430. Allowing government access to cell-site recdrds-which

"hold for many Americans the 'privacies of life, I » Riley v. Californle, 573 US

373, 403 (2014)-contravenes that expectation. In fact, historical cell-site

records

present

even

greater

privacy concerns

than

the

GPS

monitoring

considered in Jones; They give the Government near perfect surveillance and

allow it to travel back in time to retrace a person's whereabouts, subject

only to the five-year retention policies of most wireless carriers.

technology has enhanced the Government's capacity to encroach upon areas

normally guarded from inquisitive eyes, this Court has sought to "assure[J

preservation of that degree of privacy against government that existed when

the Fourth Amendment was adopted." Carpenter, 138 5. Ct. at 2217-2219. (citing

Kyllo v. United States. 533 US 27, 34 (2001)).

The government*8 position in Carpenter's case was that the third-party

doctrine governed Carpenter's case,

because cell-site

records,

like the

records in Smith and Millar, are "business records" created and maintained by

wireless carriers.

The Courts rejected the governments position stating; "But there is a

world

of difference

between

the

limited

types

of personal

information

addressed in Smith and Miller and the exhaustive chronicle of location

information casually collected by wireless carriers". Carpenter, 138 S. Ct. at

2210. The third-party doctrine sterna from the notion that an individual has a

reduced expectation of privacy in information knowingly shared with another.

Smith and Miller, however, did not rely solely on the fact of sharing. They

also

considered

the

"nature

the

1°

particular

documents

sought"

and

limitations on any "legitimate

expectation of privacy'

concerning their

contents". Millar, 425 US at 442. In mechanically applying the third-party

doctrine

to thiB case the

Government fails

to appreciate

the lack of

comparable limitations on the revealing nature of CSLI. Carpenter, 138 S. Ct.

at 2210.

Nor does the second rationale for the third-party doctrine-voluntery

exposure-hold up when it comes to CSLI. Cell phone location information is not

truly "shared" as the term is normally understood. First, cell phones and the

services they provide are "such a pervasive and insistent part of daily life"

that carrying one is indispensable to participation in modern society. Riley,

573 US at 385. Second, a cell phone logs a cell-site record by dint of its

operation, without any affirmative act on the user's part beyond powering up.

Carpenter, 13B S. Ct. at 2218-2220.

The Court further concluded: This decision is narrow. It does not express

a view on matters not before the Court; doss not disturb the application of

Smith and Hiller (nor Knottar Oonea or Riley, in this matter), or call into

question conventional surveillance techniques and tools, such

cameras;

security

does not address other business records that might incidentally

reveal location information; does not consider other collection techniques

involving foreign affairs or national security. Carpenter, 138 5. Ct. at 22202221 .

The Government did not obtain a warrant supported by probable cause

before acquiring Carpenter's cell-site records. It acquired those records

pursuant to a court order under the Stared Communication Act, which required

the Government to show "reasonable grounds" for believing the records ware

"relevant and material to an ongoing investigation." 18 U.S.C. §2703(d). That

showing falls well short of the probable cause required for a wBrrant.

Consequently, an order issued under 2703(d) la not a permissible mechanism for

accessing historical cell-site records.

[emphasis added]. Not all orders

compelling the production of documents will require a showing of probable

cause. A warrant is required only in the rare case where the suspect has e

legitimate privacy interest in the records held by a third-party, and even

though the Government will generally need a warrant to access CSLX, casespecific exceptions- e.g • t exigent eircumstBnces-may support a warrantless

search. Carpenter, 130 5. Ct. at 2221-2223.

The frame work detailed in Carpenter was clear "Before compelling a

wireless carrier to turn over a subscriber's CSLI, the Government's obligation

is a

familiar one-get a warrant." Carpenter,

130 S.

Ct.

at 2221 .

The

definition of the word familiar as defined by the Oxford dictionary ie as

follows:

well

known,

often

encountered or

experienced.

wall

acquainted. 3' excessively informal; impertinent. U unceremonious; informal;

close friend, customary, routine, aware, etc.

The Defendant asserts, that none of the language mentioned within the

Carpenter decision is consistent within Teague's standard of a "clear break"

from or a "new" obligation on the State or Federal Government.

The decision made in Carpenter defines what the Farmers thoughts were and

their purpose for cresting the Fourth Amendment, clarifies by existing Supreme

Court precedent the difference between the types of documents in Smith and

Miller verses the type of documents in Carpenter, make's very clear to the

government's position, that the Supreme Court will 'not' extend Smith and

Miller to Carpenter's case, nor to the Cell-Sits Location Information (CSLI)

documents, they defined the clear difference between thB Stored Communication

Act (SCA) end a probable cause warrant requirement,

The Court framed the Carpenter case following Katz, Knotts, Jonaa, and

Riley> These cases establish that individuals have a reasonable expectation of

privacy in the uhole of their physical movements contained within Call-Site

Location Information. Carpenter. 138 S. Ct. at 2214-2223. Defendant assarts,

that the language in Carpenter ia not anything new nor a breaking away from.

Dust simply applying settled law to a new set of facts. Even though aoma lower

courts held, that the SCA was a permissible mechanism for accessing historical

call-site data, the United States Supreme Court made it vary clear in their

decision in Carpenter they stated: "But this Court has •never' held that the

Government may subpoena third-parties for records in which the suspect hes e

• reasonable

expectation

privacy'."

Carpenter.

138

s'.

Ct.

2221.

Furthermore,

though the practice of lower courts of compelling wireless

carriers to turn over CSLI data through subpoenas under the SCA, this practice

was not approved by the Supreme Court nor Congress who passed the Wireless

Ccrmsunicstion and Public Safety Act (WCPSA) in 1996, and then later amended

this statute in 1999 to include "location information" for. the purpose of

privacy protection. See Wireless Communication and Public Safety Act 47 U.5.C,

§222(f)(1).

In 1999, Congress passed the Wireless Communication and Public Safety Act

(WCPSA), which emended the Telecommunication Act to place limits on the

carrier'a uae or disclosure of cell-phone user's "location information." The

existing

statute

obliged

the

telecommunication

carrier

protect

the

confidentiality of "customer proprietary network information" (CPNI), that is,

information about the customer's use of the sarvica that was mads available to

tha

carrier by

the

customer

solely

relationship. 47 U.S.C. §222 (f)(1)

by virtue

(1996).

protection for wireless customer's, tha

of the

carrier-oustomer

in order to enhance privacy

new statute' amended tha definition

of (CPNI) to include "location," and added the following section:

I-3

(f) Authority to uae wireless location information:

For purposes of subsection (c)(1), without the expressed prior

authorization of the customer, a customer shall not be considered to

hove approved the use or disclosure of or access to(1) call location information concerning the user of a commercial

mobile service • • • \ or the user of an IP-enabled voice service • * * *

other than in accordance with subsection (d)(4) of this section

•

47 U.S.G. §222(f)(1999). The privacy concerns animating this legislation were

well ertlculeted by one of the bill's sponsors on the House floor:

There ia no question that information-rich location systems that do

uondars to help save lives on our Nation's roadways also pose

significant risks for compromising personal privacy. This is because

the technology also avails wireless companies of the ability to locate

and track individual's movements throughout society, where you go for

lunch break; where you drive on the weekends; the places you visit

during the coarse of e week ia your business, it ia your private

business, not information that wireless companies ought to collect,

monitor, disclosure, or use without one's approval.,.

Wherever your cell phone goes becomes a monitor of all your activities.

145 Cong. Rec. H985B-01, at H986Q (daily eri. Oct, 12, 1999)(statement by Rep.

Edward Markey). Other members expressed similar privacy concerns:

See, B.g * » 145 Cong. Reo* H9858-Q1, et H9B60 (daily ed. Oct. 12,

1999)(statement by Rep. Wilburt Tauzin)("(The privacy provision]

protects ua from the Government knowing where you are going and whet

you are doing in your life")); 145 Cong. Rec. H9858-01 , at H9862 (daily

ed. Oct. 12, 1999)(statement by Rep. Gene Green)("we do not want Big

Brother looking over our shoulders"); 145 Cong. Rec. H9858-01, at

H9B63 (daily ed. Oct. 12, 1999)(statement by Rep, Thomas Bliley)("It

is not appropriate to let government or commercial parties collect

such Information or keep tabs on the exact location of individual

subscribers. 5. BOO will ensure that such call location information is

not disclosed without the authorization of the user, except in

emergency situations, and only to specific personnel.").

It 1b crystal clear what the legislative intent was when Congress passed

the (WCP5A) in 1999, supporting the crystal clear language in Carpenter, In

Katz,

389 US at 351, we established that "the Fourth Amendment protecta

people, not plecee," and expanded our conception of the Amendment to protect

certain expectations of privacy as well, when an individual "seeks to preserve

something ae private," end his expectation of privacy is "one that society ia

prepared to recognize as reasonable," we have held that official intrusion

into that private sphere generally qualifies as a search and requires a

warrant supported by probable cause.0 Carpenter, 138 S. Ct. at 2213, (citing

Smith. 442 US at 740).

The enactment by Congress of the Wireless Communication and Public Safety

Act (WCPSA) in 1999, is implementing Fourth Amendment protection's aa Supreme

Court president ruled prior to it enactment.

Thia Statute was interpreted by U.S Keg. Oudge Stephen Wm Smith in In re

UnitBd Stees ax rel. Historical Cell Site Data. 747 F. Supp. 2d 527. Oudge

Smith stated the following:

Contrary to the Government's claim, the tiJGPSA does not "by its termB

allow compelled disclosure pursuant to the SCA" » « • » The statute "does

not mention the SCA." It merely recognizes an exception to its

disclosure restrictions "as required by law." 47 U.S.C. jl222(c)(1),

thi3 language is perfectly consistent with a Fourth Amendment warrant

requirmont. Id. 747 F. Supp. at 844 [emphasis added].

Thus, as to Taaguo's second requirement of "a case announces a new rula"

xf the result was not dictated by precedents existing at the time the

Defendant*8 conviction became final. Defendant's conviction became final in

2016. The biireless Communication and Public Safety Act was created by Congress

in 1996 and subsequently, amended in 1999 to add protection for "location

information." In addition to the fact that Carpenter's decision was baaed on

existing precedents that the Court was Careful not to disturb. Id. at 2220.

Considering these facts the second exception in Teague must fail, because

Carpenter'b decision resulted from the application of "settled law," (i.e.

Katz, Knotta, 3ones, Riley, Smith & Hiller) to new facts, it did not announce

"new"

rule,

but

simply

clarified

under

existing

precedents,

that

individual in-fact "maintains a legitimate expectation of privecy in the

record of hia physical movements as captured through CSLI." Id. at 2217.

Therefore, Carpenter's decision did not "break away" from the past nor does it

place a "new" obligation on the State and Federal Government.

Next, us turn to the teet for retroactivity in Griffith v. Kentucky,

eupra. Griffith held the following for determining if "retroactivity" applies:

A neui constitutional rule eatebliahed by the United Staes Supreme

Court for the conduct of criminal prosecution ie to be applied

retroactively to all cases, State or Federal -t which were pending on

direct review or not yet final at tha time the new rule was announced,

with no exception for cases in which the new rule represents a "clear

break" with the pest, that is, where the new rule explicitly overrules

past precedent of the supreme court, disepproves a practice which the

Supreme Court has arguably sanctioned in prior cease, or overturns a

longstanding practice that lower courts have uniformly approved;

"final" means a case in which a judgment of conviction haa been

rendered, the availability of appeal exhausted, and the time for a

petition for certiorari elapsed or a petition for certiorari finally

denied...Id. at L. Ed. HN 2A.

See also United States v. Johnson. 457 US 537, 549-551 (1982)(New Rule

"explicitly overrules a past precedent of this Court * • *«|or

disapproves a practice this Court arguably has sanctioned in prior

cases. “ M or overturns a longstanding and widespread practice to

which this Court has not spoken, but which a near-unanimous body of

lower court authority has expressly approved.").

The firgt prong, "the new rule represents a 'clear break’ with the past,

that ie, where the new rule explicitly overrules past precedent of the Supreme

Court . When applying the first prong in Griffith to Carpenter, as argued

abdve, thia prong also fails, the decision in Carpenter resulted from the

application of "settled law," to new facts. Carpenter in-fact did not "break .

away" from the pest nor does it place a "new" obligation on tha State and

Federal Government. Simply put, Carpenter clerified under existing precedents,

(without disturbing them) that a individual in-fact "maintains a legitimate

expectation of privacy in the record of his physical movements as captured

through CSLI." Carpenter. 138 S. Ct. at 2217. See also (UCSPaU 47 U.S.C.

,)l222(f)(1). of 1999.

As for the second prong in Griffith which states: "disapproves a practice

which the Supreme Court has arguably sanctioned in prior eases." The second

prong also fails, Carpenter’s decision held, "But this Court haa 'never' held

that the government may subpoena third patties for records in which the

suspect has a reasonable expectation of privacy." Carpenter, 138 S. Ct. at

2221 .

The third and final prong in Griffith is:

"overturns a longstanding

practice that lower courts have uniformly approved." Ths defendant, asserts

that the practice of compelling wireless carriers to turn over CSLI via a

subpoena under the Stored Communication Act (SCA)i, was not uniformly practiced

but in-fact was split going in both directions. Some lower courts required the

government to obtain e probable cause warrant before compelling s wireless

carrier to turn over CSLI documents end agreed that a customer has not

voluntarily shared his CSLI with a wireless carrier simply because he turned

an a cell phone. Ssb In re United States ex rel. Historical Cell Site Data,

747 F. Supp. 2d 827, 839 (S.D. Tex. 2010); In re U.S. order Auth. the Rel. of

Hist. Cell-site info.. 736 F. Supp. 2d 578, 580 (E.D.N.Y. 2010); In ra U.S.

order Directing Prov. to Disclose Records, 620 F.3d 384, 308-309 (3rd Cir.

2010); Com, v. Augustine. 467 Hass. 230, 4 N.E. 3d 846 (2014)(recognizing a

reasonable expectation of privacy in call-site location Information)} ll.S. v.

Powell, 943 F. Supp. 2d 759, 770(E.D. Mich. 2013)(surveillance by means of

cellular tracking data constituted a search that must be justified by probeblB

cause

and

a warrant);

2014)("Call-site

U.S.

location

Davis,

information

754

F3d 1205,

within

1217

subscriber's

(11th

Cir.

reasonable

expectation of privacy. The obtaining of that information without a warrant is

a Fourth Amendment violation.11). And some lower courts held that a subpoena

under the SCA was sufficient to compel a wireless carrier to turn over a

subscriber's CSLI. See U.S. v. Graham. 824 F.3d 421, 424 (4th Cir. 2016); U.S,

v. Caira, 833 F.3d 803, 807 (7th Cir. 2016); U.S. v, Thompson, 866 F.3d 1149,

1153-1154 (10th Cir. 2017).

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Mich 55 (1991); People v. Doyle, 451 Mich 93 (1996); People v. Newson, 173 Mich App.

160 (1988) (decision clarifying existing law is to be given full retroactive

effect).

Defendant/Appellant submits his case is analogous to People v. Walker, 2019

Mich App. LEXIS 2531 in that a constitutional Fourth Amendment violation should be

applied retroactively on collateral appeal.

CSLI obtained by valid search warrant.

Defendant/Appellant had a right to have

Defendant's conviction became final in 2016

and like Lafler v. Cooper, 566 U.S. 5156, Carpenter does not create a new rule and

therefore applies retroactively.

Accordingly, Defendant/Appellant contends that the ruling of Carpenter should

be given full retroactive effect and applied to the instant case.

The Southfield

Police Department violated Defendant/Appellant's Fourth Amendment right where they

obtained via the internet, Defendant/Appellant's Cell-Site Location Information

(CSLI).

This information was material and the use of it prejudiced Defendant/Appellant

in violation of his Fourth Amendment right, and also his right to a fair trial and

due process protected by the Sixth and Fourteenth Amendments.

i<7

II. MR. BUTLER WAS DENIED DUE PROCESS AND A FAIR

TRIAL

THE

INTRODUCTION

TRIAL OF

UNAUTHENTICATED HISTORICAL CELL-SITE LOCATION

INFORMATION OBTAINED WITHOUT A VALID PROBABLE

CAUSE WARRANT IN VIOLATION OF THE FOURTH

AMENDMENT.

ALTERNATIVELY, TRIAL AND APPELLATE

COUNSEL WERE INEFFECTIVE FOR FAILING TO OBJECT

AND

INVESTIGATE

THE

UNAUTHENTICATED

CSLI

DOCUMENTS, DENYING DEFENDANT/APPELLANT

HIS

STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER

U.S. CONST, IV,VI,XIV, CONST, 1963, ART 1 §§11,

15, 17, 20.

STANDARD OF REVIEW

Where a question arises on the matter of a Fourth Amendment violation, the

court shall review for clear error if the defendant had a reasonable expectation to

privacy when there was no valid probable cause warrant issued

then any and all

evidence obtained from an illegal search, be it a physical search of a person or

electronic or tracking, said evidence is inadmissible. Carpenter v. United States,

2018 US LEXIS 3844; 201 LED 2d 507 (2018).

The Michigan Supreme Court recently stated that a person may raise a Fourth

Amendment claim if that person can show under the totality of circumstances, that he

or she had a legitimate expectation of privacy in the area searched that society

recognizes as reasonable.

People v. Mead, 503 Mich 205 (2019).

ARGUMENT

Defendant/Appellant was denied due process and a fair trial by the introduction

of unauthenticated historical (CSLI) Cell-Site Location Information, which was

obtained without a valid probable cause warrant to AT&T, in violation of

the Fqurth Amendment.

Mr.

Butler asserts that the AT&T cell-phone records that contained

historical cell-site location information was obntained without a valid search

warrant.

They were not supported by probable cause and must be suppressed and

Mr. Butler's conviction reversed/ vacated/ or remanded for a new trial without

the use of the illegally obtained documents. (See Carpenter v. United States/

138 S.CT. 2206 (2018))

Det. David Clevenger of the Southfield Police Dept, was conscientiously

aware of the need for a search warrant supported by probable cause in order to

obtain

the

documents.

fact/

obtained

warrant

get

Defendant's/Appellants (CSLI) only to realize upon serving the warrant that he

made a grave error/ the warrant Det. Clevenger obtained was for Verizon/ (Cell

Partnership BDA Verizon Wireless) (See Attachment T).

Mr. Butler was not a Verizon customer and they did not hold the documents

that Det. Clevenger sought to obtain/ nor was Verizon Defendant/Appellant's

cell-phone provider before or after the crime in question was committed.

Southfield Police proceeded to go beyond the specific 3-day period

expressly stated in the warrant request.

The police violated the scope of

what was required to particularly described by the Fourth Amendment.

The

Southfield Police acquired Mr. Butler's cell-phone and house phone records for

a period of one year well-beyond the 3-day specified in the invalid warrant

(See Attachment U) and well past the 7-day retention period outlined in

Carpenter/ supra.

Det. Clevenger never resubmitted a new warrant to AT&T

Wireless.

The Southfield Police did not contact AT&T representatives by any formal

written request.

The documents used during the trial were obtained via the

internet from the police Department's Computer Network without a subpoena

pursuant to the Stored Communication Act/ 18 U.S.C. § 2703(d)(2).

The police

accessed the Cell-Tower records and data including wave propagation maps for

Cell-Towers in violation of 18 U.S.C. §2701 et seq.

These

AT&T

cell-phone

records were admitted by the prosecution as

evidence without first verifying and authenticating the documents and properly

introducing pursuant to MRE 902(11).

The documents used yet not authenicated, alleged to be Mr. Butler's

cell-phone records that were used to show historical (CSLI) cell-site location

information/ which purported to show defendants physical movements and used

them to create a time line theory which the prosecutor used throughout trial

and repeatedly in opening and closing arguments/ showing a factual basic that

this was outcome determinative.

When Det. Clevenger circumvented the warrant process he did so with

willful disregard of Mr. Butler's Fourth Amendment right.

supra).

(See Carpenter/

The Fourth Amendment protects not only property interests/ but

certain expectation of privacy as well.

Katz v United States 389 US 347/ 351

(1997).

Even under the Store Communication Act 18 U.S.C.A. § 2703(d)/ the United

States Supreme Court has already ruled that S.C.A does not go around Fourth

Amendment protection/ nor is the S.C.A. a permissible mechanism for assessing

historical Cell-Site Location Information.

(See Carpenter# supra.)

In the case against Defendant/Appellant there was neither a subpoena under the

S.C.A. nor a valid search warrant supported by probable cause. Wong v. U.S.. 371

U.S. 471 (1963), which is needed for the state to access and use (CSLI) data in Mr.

Butler's trial against him. See Carpenter, supra,

Therefore, the States actions

violated Defendant/Appellant's right to be free from unreasonable search and/or

seizure guaranteed by both the United States Constitution and Michigan Constitution

1963 Art 1 §§11, 15, 17, 20.

Mr. Butler contends that Det. Clevenger needed a valid warrant as outlined in

Carpenter and Defendant/Appellant/s cellphone records containing his (CSLI) were the

fruits of an illegal search and therefore must be suppressed.

23-

The Fourth Amendment of the United States Constitution provides as follows:

- The right of people is to be secure in their persons

houses, papers, and effects against unreasonable searches

and seizures, shall not be supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

[Emphasis added]

Article 1, section II of the Michigan Constitution of 1963 provides as follows:

The persons houses, papers, and possessions of every

person shall be secure from unreasonable searches and

seizures. No warrant to search any place or to seize any

person or things shall issue without describing them, nor

without probable cause,

supported by oath or

affirmation...[Emphasis added)

Mr. Butler's case is similar to Carpenter1 s with one exception that sets

Defendant/Appellant's case apart as more prejudicial than Carpenter1 a♦

The fact that Det. Clevenger did not have a subpoena pursuant to the Stored

Communications Act 18 U.S.C. §2703d, "before compelling a wireless carrier to turn

over a subscriber's CSLI the government's obligation is a familiar one - get a

warrant." Carpenter, 138 S.Ct. at 2221.

Accordingly, as stated herein, the holding announced in Carpenter, supra should

be given full retroactive effect,

Furthermore, Mr. Butler asserts that the "good

faith" exception cannot suffice to save Det. Clevenger.

During trial the prosecution called Det. Wakefield also of the Southfield

Police Department.

He testified as an expert and during cross-examination by

defense attorney Niskar, the following was clarified:

Cross-Examination

By Mr. Niskar

Is it true that he provided those records to you prior to you subpoening - were you

- strike that.

Southfield Police Department will subpoena cell-phone records from

the carriers, correct?

But we would — we would request by a search warrant.

Or by search warrant.

Right.

Right?

There is a — Stored Communications Protection Act, which requires you to do that,

right?

It doesn't require us to request them, but if we need to request them through the

carriers — whether it's a subpoena, search warrant, some sort of court order, yes.

[Emphasis added] (TT-V, 40) (Attachment X).

Mr. Butler asserts that the Southfield Police Department had an established

procedure identified in Det. Wakefield's testimony.

The evidence shows that Det.

Clevenger did not follow this procedure, he disregarded the law and constitution and

did it his way clearly in bad faith.

In fact, Det. Wakefield, who claimed to be an expert in historical cellular

data based on a brief training seminar he attended on a computer forensics which may

have included a unit on cellular data (TT V, 10-26).

Det. Wakefield never attended

any courses, training, or programs with the various cell-phone providers (AT&T for

Mr. Butler, Sprint for Roberts (TT V, 42) Attachment W and G)).

Southfield Police Det. Clevenger supplied phone records via the internet from

the police department's computer network from providers of electronic communication

service or remote computing service to Det. Wakefield, who stated he did this work

two or three times a week, sometimes all week (TT V, 8).

Det. Clevenger submitted CellCo DBA Verizon cellular phone record language

under (1) of warrant.

The following constitutes evidence of criminal conduct: That

stated the full (scope) and (2) The property to be searched for and seized is

specifically described as: CellCo partnership DBA Verizon Wireless (Attachment T).

Verizon is a totally different phone carrier from AT&T.

The Southfield Police

proceeded to obtain Defendant/Appellant1s cell-phone number/records for the time

period of

this crime by illegally acquiring Defendant/Appellant's cell-phone

number/records from his daughter, Jennifer Lynn Culbreath and her husband Curtis

Culbreath's home phone records from Vonage, their phone company provider in South

Carolina.

These records were obtained (Exhibit E) without their written approval/request or a

search warrant/subpoena, furthermore the records were obtained via the internet

web site vonage.com

through the police department's computer network by remote

computing in violation of 18 U.S.C. §2701 et. seq.

When a trial court determines that a defendant has established a "substantial

preliminary showing of a deliberate falsehood or reckless disregard for the truth by

the affiant" in the search warrant affidavit, and the allegedly false statement was

to a finding of probable cause, the trial court holds an evidentiary hearing

pursuant to Franks v. Delaware, 438 U.S. 154; 98 S.Ct. 2674; 57 LED 2d 667 (1978),

Franklin, 500 Mich 92 at 94-95.

The same standard is used so defendant may then be entitled to have the warrant

voided (when reckless disregard for the truth is established by a preponderance of

the evidence and the affidavit's remaining contentt^wAfeufficient to establish

probable cause. IP. at 104, citation omitted). Generally, unconstitutionally seized

evidence must be excluded from trial; People v. Dillon, 296 Mich App. 506, 508; 822

N.W. 2d 611 (2012) "Exclusion of improperly obtained evidence serves as a deterrant

to police misconduct, protects the rights to privacy, and preserves judicial

integrity." People v. Hyde. 285 Mich App. 428, 439; 775 N.W. 2d 644 (2008).

The "good faith" exception to the exclusionary rule announced in United States

v. Leon, 468 US 897 (1954) cannot be applied to Mr. Butler's circumstances.

26'

In Leon, the court stated when the "good faith" exception would not apply:

"The deterrent purpose of the exclusionary rule

necessarily assumes that the police have engaged in

willful, or at the very least negligent conduct which has

deprived the defendant of some right by refusing to admit

evidence gained as a result of such conduct. The Court's

hope to instill in those particular investigating

officers, or their future counterparts, a greater degree

of care toward the rights of an accused." Leon, 468 US at

919, citing U.S. v. Peltier, 422 US 531,“552 (1975) 95

S.Ct. 2313. '

Det.Clevenger's actions were willful and negligent and a gross violation of

Southfield Police Department procedure and ultimately violated Defendant/Appellant's

rights under both United States and Michigan Constitutions.

The AT&T cell-phone records were illegally obtained and used in Mr. Butler's

trial from the beginning, all throughout and included in closing arguments, in

violation of Defendant/Appellant's constitutional rights to a fair trial. (Exhibit

D).

A search warrant which authorizes electronic surveillance must limit any/

Isearch to precise and discriminate circumstances; People v. Dezek, 107 Mich App. 78.

This act by the Southfield Police was not a technical violation of Michigan's

statutory warrant requirements.

The Fourth Amendment protects people, not just places.

MCL 780.654(1) states that each warrant shall designate and describe the house or

■M-

building or other location or place to be searched and the property or thing to be sei

zed does not override a Fourth Amendment violation.

Recently passed Constitution Amendent, Michigan proposal 2 requires a search warr

ant for all Electronic Communications service or remote computing service pertaining to

aasubscriber or customer that are obtained in violation of the provisions of this Amend

ment are subject to the rules governing exclusion as if the records were obtained, in

violation of Amendment IV of the constitution of the United States and section 11 of

Article

I of the State Constitution of 1963.

The trial court Plaintiff/Appellee fails to address that the AT&T cell-phone

records were admitted by the prosecution as evidence,

They failed to verify and

authenticate these documents and properly introducing them pursuant to MRE 902(11).

Rule 902 Self-Authentication: Extrinsic evidence of authenticity as a condition

precedent to admissibility is not required with respect to the following: (11)

certified records of regularly conducted activity.

The original or a dupLicate of a

record, whether domestic or foreign of regularly conducted business activity that

would be admissible by written rule 803(fc) if accompanied by written declaration

under oath by its custodian or other qualified person certifying that:

(A) The record was made at or near the time of the occurrence

of the matters set forth by or from information by a

person with knowledge of these materials;

(B) The record was kept in the course of regularly conducted

business activity and;

(G) It was the regular practice of the business activity to

make the record.

A.party intending to offer into evidence under this paragraph must provide

written notice of that intention to all adverse parties, and must make the record of

a declaration available for inspection sufficiently in advance of their offer into

evidence, to provide an adverse party with a fair opportunity to challenge them.

The prosecution violated Mr. Butler's constitutional rights by not following

its own procedure. (See People v. jjale, 2018 Mich App. LEXIS 1302, April 10, 2018.

Exhibit F).

Mr.

Butler argues

that CSLI data obtained by the invalid search

warrant and lack of authentication were used in his trial in 'violation

of his constitutional rights to a fair trial.

B. ALTERNATIVELY,

TRIAL AND APPELLATE COUNSEL WERE

INEFFECTIVE FOR FAILING TO OBJECT AND INVESTIGATE THE

UNAUTHENTICATED CSLI DOCUMENT IN VIOLATION OF THE SIXTH

AMENDMENT AND STRICKLAND V. WASHINGTON

■*

STANDARD OF REVIEW

Whether

the

defendant was

denied

the

effective

assistance

counsel is a constitutional question which this court reviews De Novo.

People v.feBlanc. 465 Mich App. 575, 579; People v. Henry, 239 Mich App

140, 146.

the

alternate,

for

reasons

the

stated

above,

Defendant/Appellant was denied his Sixth Amendment right to effective

assistance

trial

counsel

his

failure

object

the

introduction of the unauthenticated AT&T cell-phone records containing

his CSLI documenting his historical physical movements.

Counsel was

also ineffective for failing to investigate this information and move

the trial court to suppress the illegally obtained documents.

the

Michigan and

the

Both

United States Constitution guarantees that a

criminal defendant enjoy the assistance of counsel for his or her

defense (U.S. Const. Amend. VI; Mich Const. 1963 Art. 1 §20.

A claim of ineffective assistance of counsel is governed by the

familiar two-prong test set forth in Strickland v. Washington. 466 US

668

(1984);

People

Pickens,

466

Mich

298

(1994).

First

the

defendant must show that his attorney's performance was deficient.

Deficient performance is not merely below average performance, rather,

"the defendant must show that counsel's

representation fell

Strickland

668.

prejudiced

the

below an objective standard of

Second,

the

substandard

defendant

must

performance;

reasonableness."

show

that

he was

"prejudice"

"reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different.

A reasonable

probability is a probability sufficient to undermine confidence in the

outcome." Id. at 694 (See Attachment H, L, M, N, and Z).

It has been consistently held that defense counsel's failure to

take

the

proper

constitutional

and

rights

evident

during

steps

criminal

protect

his

prosecution

clients

constitutes

ineffective assistance and/or denies the defendant a fair trial. (See

e.g.

Kimmelman v. Morrison,

claim

ineffectiveness

477 US 365

not

(1986) and its progeny),

necessarily

attorney's performance at trial overall.

referendum

A "single serious error" may

support a claim of ineffective assistance of counsel. Id. at 383.

Trial counsel's first failure to object to inadmissible evidence

can be constitutionally ineffective assistance warranting a new trial

where

the

deficient

performance

deprived

the

defendant

fair

trial. (See generally, Northrop v. Trippett. 265 F3d 372 (CA 6 2001),

cert den 535 US 955

(2002)

(Fourth Amendment violation);

People v.

Ullah, 216 Mich App. 669, 550 N.W. 2d 568 (1996) (Improper other acts

evidence).

Mr. Butler, was denied effective assistance when trial counsel failed to

investigate

the

AT&T cell-phone records that contained Cell-Bite Location

Information, had counsel done even a small amount of investigation into this

evidence it would have been discovered how Det. Clevenger obtained the crucial

evidence even pre-Carpenter, the process used was in violation of Mr. Butler's

due process rights, in addition to the fact that these documents were never

authenticated, to insure they ware accurate,

investigate can certainly constitute

and unmolested.

"A failure to

ineffective assistance." Washington v

Smith, 215 F3d 620, 630 (CA 7, 2000). Now post-Carpenter there is no question

to counsel's performance being deficient. Trial counsel owed defendant "a duty

to make a reasonable investigation or to make a reasonable decision that makes

particular investigations unnecessary." Strickland, 466 US at 691.; People v

Caballero,

1B4 Mich App 636, 640-642 (1990). Effective assistance requires

that defense counsel adequately prepare for trial. Workman v Tate, 957 F2d

1339, 1345 (CA 6, 1992); People v Storch, 176 Mich App 414, 423-426 (19B9).

Furthermore, as a result of counsel's deficient performance for failing

to investigate and challenge the AT&T records containing CSLI, prejudice is

apparent. The prosecutions entire theory was based upon the CSLI records. The

prosecution ralied almost completely in laying the foundation to which their

whole case was built upon these non-authantic documents, without them their

whole case was a sham, nothing but a hollow theory, and a different outcome

was almost guaranteed to say the least. Counsel's failure to challenge these

documents was ineffective and resulted in Mr.

Butler being denied a fair

trial, the prejudice has been met. Strickland, 466 US at 694. Accordingly, as

held in Carpenter the AT&T cell-phone records containing Mr. Butler's CSLI was

search under

the

Fourth Amendment,

thus the exclusionary rule must be

applied to these records obtained in bad faith without a search warrant.

DEFENDANT/APPELLANT WAS DENIED HIS DUE PROCESS RIGHT TO

EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

criminal

defendant

entitled

effective

assistance

counsel on appeal as well as at trial, counsel who acts as an advocate

rather than merely as a friend or the court.

Evitts v. Lucey. 469 US

387

636

(1985);

Mahdi v.

Bagley.

552

F3d 631 ,

(CA

Strickland test applies as well to appellate counsel.

483 US 776 (1987).

2008).

The

Burger v. Kemp.

Courts rarely characterize advocacy as effective

by the presentation of every possible non-frivolous argument that can

be made.

See Smith v. Murray, 477 US 527 (1986); Joshua v. DeWitt.

341 F3d 430, 441 (CA 6 2003).

Nevertheless, an appellate attorney's

failure to raise an issue can amount to ineffective assistance.

Smith

it is

Robbins. 528 US 259,

288 (2000)

("Notwithstanding Barnes,

still possible to bring a Strickland claim based on counsel's failure

to raise a particular claim."); McFarland v. Yukins. 356 F3d 688 (CA 6

2004).

"Counsel's performance is strongly presumed to be effective."

Id. at 710, quoting Scott v. Mitchell. 209 F3d 854, 880 (CA 6 2000),

and

"only

when

ignored

issues

are

clearly

stronger

than

those

presented will the presumption of effective assistance of [appellate]

counsel

overcome."

Joshua.

341

F3d

441

(alterations

original), quoting Monzo v. Edwards. 281 F3d 568, 579 (CA 6 2002).

stated herein,

counsel failed completely

to investigate and

move to suppress the AT&T cell-phone record due to the fact that Det.

Clevenger failed to get a warrant or subpoena when he obtained the

CSLI

records.

prosecutions

Counsel

failure

failed

further

authenticate

evidence.

Appellate

"amount[ed]

McFarland,

to constitutionally

counsel's

failure

objecting

properly

to challenge

ineffective

not

introduce

the

this

this evidence

assistance on appeal."

supra.

This

argument

logically

depends

the

underlying ineffective assistance of counsel claim.

merits

the

Ivory v. Jackson.

509 F3d 264, 294 (CA6, 2007) ("whether raising the issue might have

changed the result on appeal, in turn, goes to the merit of the claim

itself.").

As presented herein,

Mr.

Butler has

shown that

trial

Counsel's ineffectiveness was meritorious and would have resulted in a

grant of relief,

there is no question but that appellate counsel's

error was prejudicial.

Dando v. Yuklns. 461 F3d 791, 802 (CA6 , 2006).

The critical failure of an attorney to object or raise an issue can be

ineffective assistance of counsel if it deprived the defendant of an

opportunity

for

dismissal

the

case

for

success

appeal.

Gravely v. Mills. 67 F3d 779 (CA6, 1996); Kowlak v. United States. 645

F2d

534,

537-538 (CA6,

1981); Corsa v

Anderson. 443 F. Supp.

176

(E.D. Mich. 1977).

Mr. Butler was denied his substantial rights to due process, fair

trial, and effective assistance of both trial and appellate counsel.

Due process requires that a defendant be convicted only on the

basis

legally

admissible

evidence.

Const.

XIV.

defendant's due process right to a fair trial is violated whan there

reasonable possibility that

contributed to the conviction."

inadmissible evidence might have

Fahy v. Connecticut. 375 US 85, 87-88

(1963).

Mr. Butler respectfully asserts that these newly presented issues

raised within his motion were first discovered following the United

States Supreme Court decision announced in Carpenter v. United States,

which

stated

herewithin,

applies

retroactively

this

case.

Immediately following the Carpenter decision, Mr, Butler filed in the

Michigan Supreme Court a motion pursuant to MGR 7.316A(3)&B to add

this new issue announced in Carpenter. Mr. Butler's application for

32.

leave

Judgement

appeal

under

from

MGR

the

6.500

denial

his

was

pending and

seq.

Motion

for

Relief

not yet

from

final.

Subsequently, on Feb. 4, 2019, the Michigan Supreme Court did in fact

grant

this

new

issue

to be

added

the

pending

leave

appeal.

Within the same order granting the motion to add this issue, the Court

denied his leave to appeal, (order attached Exhibit C).

DEFENDANT HAS DEMONSTRATED ACTUAL INNOCENCE AND A

RETROACTIVE CHANGE IN LAW BASED ON CARPENTER V UNITED

STATES. 138 S.CT. 2206 (2018) AND HAS SHOWN ACTUAL

PREJUDICE.

As demonstrated herewithin, Carpenter does apply to Mr.

conviction

pursuant

MCR

6.502(G)(2).

Additionally,

Butler's

March

2019, MCR 6.502(G)(2) was amended to include "The court may waive the

provision of this rule if it concludes that there is a significant

possibility that the defendant is innocent of the crime."

Mr. Butler

has made a significant showing that "it is more likely than not that

no reasonable

juror would

reasonable doubt."

and

found

[defendant]

guilty beyond

People v Swain. 288 Mich App 609 (2010).

§6.508(D)(3)(i)(iii),

prejudice"

have

asserts

shown,

that but

for

Mr.

Butler

the errors

Turning

suffered

"actual

stated above,

Mr.

Butler would have had a reasonable chance of acquittal, and that the

irregularities

were

offensive

the

maintenance

sound

judicial process that the conviction should not be allowed to stand

regardless of its effect on the outcome of this case.

Furthermore, to the extent that it requires "but for" causation,

the "actual prejudice" requirement under MCR 6.508(D)(3)(b) appears to

be equivalent to the prejudice test adopted in Strickland supra, to

establish ineffective assistance of counsel, in

that

this

test

the

defendant

must

sHow

that

"but

for"

the

error

complained of, a "reasonable probability" exist that the results might

have been different.

The "probability" requirement requires less than

a preponderance of evidence. Strickland. 466 US at 678-694.

As shown

above, Mr. Butler was denied several substantial rights, resulting in

his denial of due process and a fair trial.

Miscarriage of justice "as the courts have explained the principle

of comity and finality that inform the concepts of cause and prejudice

must yield to be imperative of correcting a fundamental injustice and

incarceration."

The courts have made clear "the miscarriage of justice" exception

extends at least, to cases of "actual innocence" which the court has

defined

situations

which

the

constitutional

violation

"has

probably resulted in the conviction of one who is actually innocent of

the offense of which he is convicted."

See Murray v Carrier. 477 US

473; Schlup v Delo. 513 US 298.

Plaintiff/Appellee

merit

warrant

stating

misstates

record

Defendant/Appellant's

violation

was

previously

Motion for Relief from Judgement.

Det.

the

and

totally without

Carpenter

Fourth

Amendment

presented

in his

original

Where Defendant/Appellant states

Wakefield claimed to be an expert in historical cellular data,

based on a brief training seminar he attended on a computer forensic

course which may have included a unit on cellular data (TT. V, 10-26).

Det. Wakefield never attended any courses, training or programs with

the

various

cell-phone

providers

Roberts) (TT. V, 42, Attachment W).

(AT&T for

Mr.

Butler,

Sprint

for

Det. Wakefield did not have the scientific knowledge or

know the

scientific method on which relevant evidence was based.

Mr. Butler presented: celltower affidavit from an expert disputing

the State's celltower expert's analysis and lack of training on the

various

cell-phone

providers;

that

State's

witness

direct

investigation

State's witness

failed

the

to inform

the

State's

expert

away

from

the State's expert

allowed

the

him

the

that his cell

phone was registered to the celltower that provides cellular service

to the crime scene (Attachment G).

Mr.

Butler asserted he did not receive a fair hearing

celltower data/analysis,

Mr.

this

knowledge,

field

scientific

consensus,

scientific

Butler could not address the

method

the

flaws in

including

shifts

scientific

relevant

scientific

which

evidence at trial was based.

Mr. Butler asserted that substantial defense was lost by counsel's

failure to secure an expert at trial

where proof was offered.

v Ackerman. 257 Mich App 434, 455 (2003).

People

Mr. Butler provided proof

that an expert would have testified favorably to establish the factual

predicate for his claim of ineffective assistance for not obtaining a

celltower expert at trial and not filing a Daubert challenge to this

evidence.

Pursuant

the

"Carpenter"

ruling,

Mr.

Butler

applied

due

diligence in notifying the Michigan Supreme Court in his delayed Leave

to Appeal.

7.316(B)

Mr. Butler requested pursuant to MCR 7.316(A)(3) and MCR

that review, consider,

and apply to his case the Carpenter

decision. (Exhibit C), (Exhibit G).

Mr.

Butler's

Motion

that

Carpenter

should

given

full

retrtoactivity change in Michigan law does not raise issues that were

previously decided against him in his first Motion for Relief from

Judgement.

Contrary

the

findings

the

Trial

Court

and

Plaintiff/Appellee, the Courts rationale for finding that Mr. Butler

did not establish actual prejudice under MCR 6.508(D)(2) was outside

the

range of reasonable and principled outcome;

and therefore,

abuse of discretion.

This was not a case

in which Mr.

overwhelming amount of evidence—rather

Butler was

convicted by an

it was quite the opposite.

The record reflects that Mr. Butler's first trial resulted in a hung

jury.

If not for the illegally obtained evidence, the second trial

may have seen the same result.

The Michigan Supreme Court in People v Mead, 503 Mich 205 (2019)

clarified Michigan law by "dispensing with the rubric of standing" in

the Fourth Amendment context.

The aspect of Mead will need to be

integrated into all Fourth Amendment challenges going forward,

The

issue whether Mr. Butler has a legitimate expectation of privacy that

society recognizes as reasonable not standing,

Verizon is a totally

different phone carrier from AT&T.

Mr.

Butler prays

this

Honorable Court finds an expectation of

privacy in the personal cell records.

The Fourth Amendment has suffered serious erosions and Mr. Butler

respectfully asks this Honorable Court to stop the emasculation of

this amendment by the good faith exception.

Mr.

Butler has made a substantial showing of merits this claim

holds and asserts in order for this Court to truly adjudicate on the

full merits an evidentiary hearing should be held. ( See Motion for

Evidentiary Hearing).

.16

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.