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Scott v. United States

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

March 29, 2018

ROBERT HAROLD SCOTT, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

         This 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 DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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 32-33). Id.

         A. Petitioner's Motion to Suppress

         On 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 Suppress:

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. 55.

         B. Trial and Sentencing

         Petitioner's 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. 113.

         On 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.

         C. Direct Appeal

         On 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.

         D. Petitioner's Motions for Post-Conviction Relief

         On 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).

         On 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.

         II. § 2255 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

         A. Standard of Review

         Section 2255 allows a federal prisoner to move to "vacate, set aside or correct" a federal sentence upon the following grounds: [1] that "the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such a sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] 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, 343-44 (1974).

         When 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 Cir. 1995).

         1. Procedural Default

         A § 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).

         When a 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).

         The 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).

         2. Reviewing Claims of Ineffective Assistance of Counsel

         The 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.

         To 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 strategy)).

         To 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 ...


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