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Scott v. United States

United States District Court, E.D. Virginia, Norfolk Division

December 21, 2017

LEROY SCOTT, JR., Petitioner,



         This matter is before the Court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed by Leroy Scott, Jr. ("Petitioner"). ECF No. 79. Petitioner's § 2255 motion contains five claims, including various challenges to the adequacy of defense counsel's representation. Id. The Government filed a brief in opposition to Petitioner's motion, ECF No. 86, and Petitioner has filed: (1) a reply brief in support of his first four claims, ECF No. 88; and (2) amotion seeking "To Strike Ground Five" from his § 2255 motion, ECF No. 87. This Court previously GRANTED Petitioner's motion addressing Ground Five, thereby deeming Ground Five "withdrawn." ECF No. 94. In light of factual conflicts in the record relevant to Petitioner's remaining four claims, the Court appointed new counsel to represent Petitioner and scheduled an evidentiary hearing. Id. Such hearing was conducted on November 20, 2017, and both Petitioner and his original defense counsel (hereinafter "trial counsel") testified at such hearing. Petitioner7 s § 2255 motion is now ripe for resolution.


         In early 2013, a grand jury returned a five-count indictment charging Petitioner with conspiracy counts and substantive counts associated with a retaliatory killing of a witness/informant and additional attempted retaliatory killings of other suspected witnesses. ECF No. 3. At the time he was indicted in this case, Petitioner had served approximately one-third of a 3 0-year prison term imposed in a previous federal case stemming from a drug trafficking conspiracy. Case No. 2:03cr52. While incarcerated on these earlier drug and firearm charges, Petitioner was interviewed by two investigators at the federal prison facility where he was housed. After being read his Miranda rights, Petitioner knowingly signed a Miranda waiver form, and provided a detailed confession outlining his involvement, many years ago, in the homicide and attempted homicides at issue in this case. ECF No. 44, at 81-84.

         Initially, the death penalty was an available punishment for all five indicted offenses in this case. However, approximately four months after the indictment was returned, the Government indicated at a status conference, held in open court, that it would not be seeking the death penalty. ECF Nos. 14, 78. Petitioner was present at such hearing with his trial counsel. Id.

         Approximately three weeks after the Government announced its intention not to seek the death penalty, Petitioner, with the assistance of trial counsel, filed a motion seeking to suppress his confession, asserting: (1) that he asked investigators for a lawyer prior to confessing; and (2) that his confession was otherwise involuntary. ECF No. 17, at 3-4. This Court conducted an evidentiary hearing on the suppression motion, and at the conclusion of such hearing, the Court denied the suppression motion, expressly finding that Petitioner's testimony regarding the details of his confession was not credible. ECF No. 44, at 94-97.

         Petitioner subsequently entered into a written plea agreement with the Government, formally admitting his guilt to all five charges. ECF No. 40. Such written agreement provides for a binding stipulated sentence of "life" as to each of the five counts, to include the "Use of a Firearm resulting in Death" charged in Count Five-an offense for which the punishment must be imposed to run consecutively to the punishment on the other counts. Id. ¶ 4. Although the Government had previously indicated its intention not to seek the death penalty, the language of the plea agreement states that the Government agrees not to seek the death penalty " [i]n return for the defendant's pleas of guilty and the defendant's agreement to a sentence of life imprisonment" on all five counts. Id. ¶ 1.

         As outlined in a motion filed by trial counsel shortly before the guilty plea hearing, ECF No. 38, and as discussed at both the guilty plea hearing, ECF No. 54, and at the recently conducted § 2255 evidentiary hearing, the Government initially offered Petitioner the opportunity to cooperate in the hope of obtaining a sentence reduction. Trial counsel discussed such offer with Petitioner on multiple occasions, and although Petitioner was initially undecided regarding both the plea offer and cooperation, he eventually requested that a proffer session be scheduled. ECF No. 38 ¶¶ 6-7.[1]Petitioner appeared for the proffer session, with his counsel, but such session was canceled when Petitioner decided not to cooperate. ECF No. 38 ¶¶ 7-8. Petitioner did ultimately elect to plead guilty to the written plea agreement proposed by the Government, but he did so only after the cooperation language was removed. ECF No. 54, at 10. While the record created at the time of Petitioner's plea establishes that the original plea offer did not include any reservation of appellate rights, the written plea agreement that was ultimately signed by Petitioner includes a partial reservation of appeal rights that allowed Petitioner to challenge this Court's denial of Petitioner's suppression motion. Id.; ECF No. 40 ¶ 5.

         Consistent with the terms of the plea agreement, Petitioner was subsequently sentenced to a concurrent term of life imprisonment on Counts One through Four, and a consecutive term of life imprisonment on Count Five. ECF No. 59. Petitioner filed a timely appeal to the United States Court of Appeals for the Fourth Circuit challenging this Court's denial of the motion to suppress, and the Fourth Circuit affirmed this Court's suppression ruling. United States v. Scott, 578 Fed.Appx. 199, 200 (4th Cir. 2014) . Petitioner subsequently filed the pending § 2255 motion which is ripe for resolution.


         A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized by law, " or that the sentence or conviction is "otherwise subject to collateral attack." Id.; see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal.[2] United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007) . With limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). The "higher hurdle" applies because, once a Petitioner's opportunity to pursue a direct appeal has been waived or exhausted, there iswa final judgment [that] commands respect." Id. at 164-65. Accordingly, the doctrine of procedural default generally prevents a district court from reaching the merits of § 2255 claims that were not raised on direct appeal unless a petitioner can show: (1) "cause" excusing the failure to directly appeal such alleged errors; and (2) "actual prejudice resulting from the errors of which he complains." United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999).

         A § 2255 petitioner need not, however, overcome the procedural default bar to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (" [I] t is well settled that 'a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both: (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) that counsel's inadequate performance caused the petitioner prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Satisfying the first prong of Strickland requires a petitioner to establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The second prong of Strickland requires a petitioner to "affirmatively prove prejudice/' which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

         The prejudice prong of the Strickland test is slightly modified when a petitioner challenges trial counsel's handling of plea negotiations. In such circumstances, petitioners must typically "demonstrate a reasonable probability that (1) 'they would have accepted the earlier plea offer had they been afforded effective assistance of counsel, ' and (2) 'the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it . . . .'" Merzbacher v. Shearin, 706 F.3d 356, 366 (4th Cir. 2013) (quoting Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012)); see Lafler v. Cooper, 566 ...

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