United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
matter comes before the Court upon Robert Harold Scott,
Jr.'s ("Petitioner") Motion Pursuant to 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
("§ 2255 Motion"). ECF No. 214. Subsequent to
filing such motion and in connection with same, Petitioner
also filed a Motion for Discovery, ECF No. 217; a Motion for
Leave to Amend based on the discoverable materials
("Motion to Amend"), ECF No. 216; a Motion for an
Evidentiary Hearing, ECF No. 218; and a Motion for Leave to
Supplement Petitioner's § 2255 Motion ("Motion
to Supplement"), ECF No. 219. For the reasons set forth
herein, Petitioner's §2255 Motion, Motion for
Discovery, Motion to Amend, Motion for an Evidentiary
Hearing, and Motion to Supplement are all
FACTUAL AND PROCEDURAL HISTORY
November 21, 2013, Petitioner was named in a criminal
indictment charging him with various counts of production and
receipt of child pornography. ECF No. 16. On January 9, 2014,
those charges were dismissed, and Petitioner was named in a
superseding criminal indictment charging him with various
counts of production and receipt of child pornography as well
as various counts of conspiracy to produce child pornography
and use of interstate commerce to entice a minor to engage in
sexual activity. ECF No. 26. On March 5, 2014, those charges
were dismissed, and Petitioner was named, along with three
co-defendants, in a thirty-three-count second superseding
indictment. ECF No. 39. Petitioner was charged with
twenty-eight of the thirty-three counts, including five
counts of Conspiracy to Produce Child Pornography, in
violation of 18 U.S.C. § 2251(a) and (e) (Counts 1-5);
eight counts of Production of Child Pornography, in violation
of 18 U.S.C. § 2251(a) (Counts 6-13); eight counts of
Receipt of Child Pornography, in violation of 18 U.S.C.
§ 2252(a)(2) (Counts 15-17, 19, 21, 23, 25-26); five
counts of Use of Interstate Commerce Facility to Entice Minor
to Engage in Sexual Activity, in violation of 18 U.S.C.
§ 2422(b) (Counts 27-31); and two counts of Destruction
of Records, in violation of 18 U.S.C. § 1519 (Counts
Petitioner's Motion to Suppress
December 18, 2013, Petitioner, by counsel, filed a motion to
suppress statements made by Petitioner during an allegedly
unlawful interrogation by law enforcement on September 18,
2013 ("Motion to Suppress"). ECF No. 22. On January
3, 2014, the United States ("Government") filed its
response in opposition. ECF No. 25. On March 18, 2014,
Petitioner, by counsel, filed a motion to withdraw the Motion
to Suppress. ECF No. 54. On that same day, the parties
appeared before the Court on Petitioner's motion to
withdraw. See ECF No. 55. At the hearing, the Court asked
Petitioner if he consented to the withdrawal of his Motion to
THE COURT: Mr. Scott, will you come forward, please. Mr.
Scott, [the motion to suppress] was an indication that
perhaps a statement may have been taken from you without
properly advising you of your rights under Miranda decision
of the Supreme Court and the question is your counsel made a
motion to suppress any statement made by you. Now she's
saying she wants to withdraw that motion. I want to make sure
that you want to withdraw that motion.
DEFENDANT: Yes, sir.
THE COURT: You understand by withdrawing the motion you will
not be able, in essence, to contest the testimony, if it
comes in, that you were given a Miranda warning before taking
the statement from you. Do you understand that, sir?
DEFENDANT: Yes, sir.
THE COURT: And you're willing to withdraw the motion to
suppress it; that is, you're willing to go ahead and
approve the conduct that your counsel has made in this case.
Is that correct?
DEFENDANT: Yes, sir.
3/18/2014 Hr'g Tr., ECF No. 187, at 2:19-3:14. Based on
Petitioner's consent, the Court granted the motion, and
Petitioner's Motion to Suppress was withdrawn. ECF No.
Trial and Sentencing
five-day jury trial began on July 8, 2014. See ECF No. 106.
On July 11, 2014, at the close of the Government's
evidence, the defense moved for a judgment of acquittal
pursuant to Rule 29 of the Federal Rules of Criminal
Procedure, which the Court denied. ECF No. 111. The defense
did not present any evidence. Id. On July 14, 2014,
the jury returned a verdict of guilty on all counts. ECF No.
November 17, 2014, the Court sentenced Petitioner to a prison
term of life plus forty years. See Judgment, ECF No. 170, at
2. This term includes a term of thirty years each on Counts
1-13; a term of twenty years each on Counts 15-17, 19, 21,
23, 25-26; and a term of life each on Counts 27-31, all to be
served concurrently. Id. Petitioner's prison
term also includes a term of twenty years on Count 32 and a
term of twenty years on Count 33, to be served consecutively
to each other and to all other counts. Id.
December 1, 2014, Petitioner appealed his judgment of
conviction to the United States Court of Appeals for the
Fourth Circuit ("Court of Appeals"). ECF No. 173.
The sole issue on appeal was whether this Court erred by
admitting evidence of Petitioner's other acts of
misconduct pursuant to Rule 404(b) of the Federal Rules of
Evidence. ECF No. 207; United States v. Scott. 631
Fed.Appx. 137 (4th Cir. 2016) (per curium) (unpublished). On
January 20, 2016, the Court of Appeals affirmed
Petitioner's conviction and sentence. Id. The
mandate of the Court of Appeals issued on February 11, 2016.
ECF No. 209.
Petitioner's Motions for Post-Conviction Relief
April 18, 2017, Petitioner timely filed the instant §
2255 Motion and a supporting memorandum ("Pet.
Mem."), ECF Nos. 214 and 215, which were docketed by the
Clerk of this Court on April 24, 2017. See 18 U.S.C. §
2255(f)(1); Houston v. Lack. 487 U.S. 266, 276
(1988) (establishing prison mailbox rule). On the same day,
Petitioner also filed a Motion for Discovery (ECF No. 217);
Motion for Leave to Amend his § 2255 Motion based on
discoverable materials (ECF No. 216); and Motion for an
Evidentiary Hearing on his § 2255 Motion (ECF No. 218).
November 6, 2017, Petitioner filed a Motion to Supplement, in
which he seeks leave to supplement his § 2255 Motion
with two sworn declarations. ECF No. 219; see id, Exs. 1, 2.
The first declaration is dated November 18, 2016, and the
second is dated March 3, 2017, both of which predate the
filing of Petitioner's § 2255 Motion.
§ 2255 MOTION TO VACATE, SET ASIDE OR CORRECT
Standard of Review
2255 allows a federal prisoner to move to "vacate, set
aside or correct" a federal sentence upon the following
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 a sentence,
or  that the sentence was in excess of the maximum
authorized by law, or  is otherwise subject to collateral
attack." 28 U.S.C. § 2255. The Supreme Court has
held that § 2255 is the appropriate vehicle by which a
federal prisoner may challenge both his conviction and
sentence. Davis v. United States. 417 U.S. 333,
filing a § 2255 petition, the petitioner bears the
burden of proving his grounds for relief by a preponderance
of the evidence. Miller v. United States, 261 F.2d
546, 547 (4th Cir. 1958)). However, a pro se petitioner is
entitled to have his petition and issues asserted therein
construed liberally. Gordon. 574 F.2d at 1151. Upon
reviewing a § 2255 motion, the district court may, in
its discretion, deny the motion without a hearing. Raines
v. United States. 423 F.2d 526, 529-31 (4th Cir. 1970).
But it may only do so if "the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief." 28 U.S.C. § 2255(b). For
instance, if the motion can be resolved exclusively on issues
of law, and no questions of fact exist, then summary
dismissal is appropriate without an evidentiary hearing. See
Green v. United States. 65 F.3d 546, 548-49 (6th
§ 2255 motion "may not do service for an
appeal." United States v. Frady. 456 U.S. 152,
165 (1982). Issues already fully litigated on direct appeal
may not be raised again under the guise of a collateral
attack. Boeckenhaupt v. United States. 537 F.2d
1182, 1183 (4th Cir. 1976). And, generally, any claim that
could have been raised at trial or on direct appeal, but was
not, is barred as procedurally defaulted. Bousley v.
United States. 523 U.S. 614, 622 (1998). However, the
doctrine of procedural default excludes claims of ineffective
assistance of counsel, Massaro v. United States. 538
U.S. 500, 504 (2003), as such claims are generally not
cognizable on direct appeal unless the record on appeal
conclusively shows ineffective assistance, United States
v. Richardson. 195 F.3d 192, 198 (4th Cir. 1999)
(internal citation omitted).
claim is procedurally defaulted, a § 2255 movant is
completely barred from seeking relief on that claim unless he
can show that: (1) there would be a "fundamental
miscarriage of justice" if relief is denied, such as
being actually innocent of the crime, Murray v.
Carrier, 477 U.S. 478, 495-96 (1986), or (2) that there
is "cause" sufficient to excuse the default and
"actual prejudice" resulting from the error,
Frady. 456 U.S. at 169 (citations omitted).
cause and prejudice standard is a "significantly higher
hurdle than would exist on direct appeal."
Frady, 456 U.S. at 166. "Cause" for a
procedural default must turn on something external to the
claim or defense itself, Murray, 477 U.S. at 488,
which, courts have consistently held, includes ineffective
assistance of counsel. United States v.
Breckenridge. 93 F.3d 132, 134 n.1 (4th Cir. 1996)
(collecting cases); see also Smith v. Dixon. 14 F.3d
956, 973 (4th Cir. 1994) (noting in the context of a §
2254 motion that "an attorney's ineffectiveness may
constitute cause for excusing a procedural default" if
the petitioner can show that he had a constitutional right to
effective assistance of counsel and that such assistance was
constitutionally ineffective). To show "actual
prejudice, " a habeas petitioner must demonstrate that
the claimed error worked to "his actual and substantial
disadvantage." Satcher v. Pruitt. 126 F.3d 561,
572 (4th Cir. 1997) (internal citation omitted); see also
Fry v. Pliler, 551 U.S. 112, 116 (2007) (defining
"actual prejudice" as a "substantial and
injurious effect or influence in determining the jury's
verdict") (citation omitted).
Reviewing Claims of Ineffective Assistance of
Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel both during trial and on
first appeal as of right. Evitts v. Lucey, 469 U.S.
387, 396 (1985). To succeed on an ineffective assistance of
counsel claim, a petitioner must satisfy the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668
(1984), by showing (1) deficient performance of counsel and
(2) resulting prejudice.
satisfy the first prong, the petitioner must show that
counsel's performance fell below an objective standard of
reasonableness. Id. at 690. To do so, the petitioner
must articulate specific acts or omissions whereby
counsel's performance fell "outside the wide range
of professionally competent assistance." Id.
When reviewing the propriety of these alleged acts or
omissions, courts must give substantial deference to defense
counsel's strategic judgments. Id. at 689-90.
Indeed, "[o]nce counsel conducts a reasonable
investigation of law and facts in a particular case, his
strategic decisions are 'virtually
unchallengeable."' Powell v. Kelly. 562
F.3d 656, 670 (4th Cir. 2009) (quoting Strickland,
466 U.S. at 690 (petitioner must overcome the presumption
that the challenged action might be considered sound trial
satisfy the second prong under Strickland, the
petitioner must show that he was prejudiced by counsel's
deficient performance. In other words, petitioner must show
that it is "reasonably likely" that, but for
counsel's unprofessional errors, the result of the
proceedings would have been different. Harrington v.
Richter,562 U.S. 86, 111-12 (2011) (citing
Strickland. 466 U.S. at 696). "The likelihood
of a different result must be substantial, not just
conceivable." Id. (citing Strickland.
466 U.S. at 693). The burden is on the petitioner to
affirmatively prove prejudice. Strickland. 466 U.S.
at 693. Furthermore, if a petitioner fails to ...