USA v. Brown et al

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:19-cv-00305-MR
CRIMINAL CASE NO. 1:00-cr-00069-MR
AMOS JUNIOR SCOTT, )
)
Petitioner, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
UNITED STATES OF AMERICA, )
)
Respondent. )
_______________________________ )
THIS MATTER is before the Court on the Government’s Amended
Motion to Dismiss the Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence. [CV Doc. 5].
I. BACKGROUND
On January 12, 2001, the Petitioner was found guilty after a jury trial of
conspiracy to possess with intent to distribute cocaine in violation of 21
U.S.C. §§ 846 and 841(a)(1). [Case No. 1:00-cr-00069 (W.D.N.C.) (“CR”)
Doc. 80].1 The Petitioner was sentenced to a term of life imprisonment as a
1 Citations to the record herein contain the relevant document number referenced
preceded either by the letters “CR” denoting that the document is listed on the docket in
Criminal Case No. 1:00-cr-00069 (W.D.N.C.) or the letters “CV” denoting that the
document is listed on the docket in Civil Case 1:19-cv-00305-MR (W.D.N.C.).
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career offender because he had already been convicted under California law
of “assault with a deadly weapon or assault with means likely to produce
great bodily harm” in 1987 and “possession of rock cocaine for sale” in 1989.
[CR Docs. 111; 189 at ¶¶ 24]. On July 12, 2002, the Fourth Circuit Court of
Appeals affirmed the conviction and sentence. United States v. Scott, 40 F.
App’x 807 (4th Cir. 2002). On January 13, 2003, the United States Supreme
Court denied certiorari. Scott v. United States, 537 U.S. 1140 (2003).
On October 10, 2003, the Petitioner filed a motion to vacate under 28
U.S.C. § 2255. [CR Doc. 135]. The Court denied the Petitioner’s motion on
November 7, 2005, and denied a motion for reconsideration under Rule 59(e)
on December 9, 2005. [CR Docs. 149; 152]. The Petitioner appealed. On
June 23, 2006, the Fourth Circuit Court of Appeals dismissed the appeal and
denied a certificate of appealability. United States v. Scott, 185 F. App’x 292
(4th Cir. 2006). The United States Supreme Court denied certiorari on June
4, 2007, Scott v. United States, 551 U.S. 1104 (2007), and rehearing on
August 20, 2007, Scott v. United States, 551 U.S. 1181 (2007).
On January 26, 2008, the Petitioner filed a petition purporting to seek
relief pursuant to 28 U.S.C. § 2254 in the Eastern District of California. The
petition was subsequently transferred to this Court. [CR Doc. 161]. On
September 3, 2008, the Court denied this motion as an unauthorized
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successive § 2255 motion to vacate and denied reconsideration. [CR Docs.
164; 166]. The Petitioner appealed. On October 5, 2009, the Fourth Circuit
dismissed Petitioner’s appeal. United States v. Scott, 346 F. App’x 975 (4th
Cir. 2009).
The Petitioner then filed an application in the Fourth Circuit Court of
Appeals for authorization to file a second or successive § 2255 motion to
vacate raising a claim under Johnson v. United States, 135 S. Ct. 2551
(2015). In re Scott, No. 16-211. The Court denied the motion on March 16,
2016, reasoning that the Petitioner was entitled to no relief under Johnson.
[CR Doc. 190].
On May 26, 2016, the Petitioner filed a motion in the underlying criminal
case seeking to correct certain “factual inaccuracies” in his Presentence
Investigation Report (“PSR”) pursuant to Rule 36 of the Federal Rules of
Criminal Procedure. [CR Doc. 192]. Specifically, the Petitioner argued that
the PSR erroneously states that (1) he was previously convicted of assault
with a deadly weapon and (2) he was once affiliated with a gang. [Id.]. On
November 6, 2017, the Court denied the motion for lack of jurisdiction
because the Petitioner the time for substantive challenges to the PSR had
expired and he failed to obtain permission from the Fourth Circuit to file a
second or successive § 2255 motion to vacate. [CR Doc. 193].
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On May 30, 2017, the Petitioner filed a writ of habeas corpus under 28
U.S.C. § 2241 in the Central District of California. Scott v. Tellez, 2017 WL
7310098 (C.D. Cal. Dec. 15, 2017). On January 21, 2018, the Petitioner’s §
2241 petition was dismissed as an unauthorized successive § 2255 motion.
Scott v. Tellez, 2017 WL 679446 (C.D. Cal. Jan. 31, 2018). The Ninth Circuit
denied a certificate of appealability, Scott v. Tellez, 2018 WL 7624875 (9th
Cir. 2018), cert. denied, 139 S. Ct. 1375 (2019).
On June 26, 2017, the Petitioner filed a petitioner for a writ of audita
querela under 28 U.S.C. § 1651 in this Court, arguing that he is entitled to
resentencing without the career offender enhancement because his prior
conviction for assault with force likely to produce great bodily harm is not
categorically a crime of violence pursuant to Johnson, 135 S. Ct. at 2551.
[Case No. 1:17-cv-00166-MR (W.D.N.C.) Doc. 1]. On November 6, 2017,
the Court dismissed the motion as an unauthorized successive § 2255
motion and denied a certificate of appealability. [CR Doc. 193].
In July 2019, the Petitioner’s counsel moved a state court in California
to correct the abstract of judgment on his conviction for assault with a deadly
weapon or force likely to produce great bodily injury. [CV Doc. 1-2 at 38-39,
41-42]. Specifically, the Petitioner asked the court to clarify that he never
was convicted of assault with a deadly weapon. [Id.]. The court granted
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relief by amending the judgment to strike all references to a deadly weapon.
[Id. at 42].
On October 23, 2019, the Petitioner, proceeding pro se, filed the
present Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255. [CV Doc. 1]. The Petitioner argues that the career offender
enhancement was improperly applied to him because, while the PSR and
the Fourth Circuit Court of Appeals referred to his conviction as assault with
a deadly weapon, the California court has now removed references to a
deadly weapon from his judgment. [CV Doc. 1-1 at 10]. The Petitioner also
argues that his conviction for assault with force likely to produce great bodily
injury does not constitute a crime of violence. [Id. at 14]. The Petitioner
further argues that he received ineffective assistance of counsel because his
counsel never investigated his assault with a deadly weapon conviction. [Id.
at 12].
On November 8, 2019, the Court entered an Order directing the
Respondent to respond to the Petitioner’s motion. [CV Doc. 2]. On January
7, 2020, the Respondent filed a Motion to Dismiss. [CV Doc. 3].2 On
January 27, 2020, the Petitioner responded. [CV Doc. 6].
2 On January 8, 2020, the Respondent filed a “Motion to File a Corrected Motion” and
filed a Corrected Motion to Dismiss. [CV Docs. 4; 5]. For cause shown, the Respondent’s
Motion for leave to file a corrected motion is granted.
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Having been fully briefed, this matter is ripe for disposition.
II. STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation
of the Constitution or the laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings . . .” in order to
determine whether the petitioner is entitled to any relief on the claims set
forth therein. After examining the record in this matter, the Court finds that
the Petitioner’s motion can be resolved without an evidentiary hearing based
on the record and governing case law. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
III. DISCUSSION
The Respondent moves to dismiss, arguing that the Petitioner’s § 2255
motion is successive, untimely, and without merit. [CV Doc. 5].
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When an initial motion pursuant to § 2255 has been adjudicated on the
merits, a second or successive motion under the statute must be certified by
the court of appeals before it may be filed with this Court. 28 U.S.C. §
2255(h). To certify a second or successive § 2255 motion for filing with this
Court, the court of appeals must find that the motion contains either: “(1)
newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” Id.
A second-in-time § 2255 motion will not, however, be successive when “the
facts relied on by the movant seeking resentencing did not exist when
numerically first motion was filed and adjudicated.” United States v.
Hairston, 754 F.3d 258, 262 (4th Cir. 2014).
The Petitioner does not provide any indication that he has received
authorization from the Fourth Circuit Court of Appeals to file this motion,
instead arguing that the present motion is not a second or successive motion
under § 2255(h) because it relies on facts that did not exist when he filed his
first § 2255 motion. [CV Doc. 1-1 at 2]. Specifically, the Petitioner contends
that California court recently “vacated and corrected” the judgment on his
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conviction for assault with a deadly weapon or force likely to produce great
bodily injury. [CV Doc. 1-1].
The Petitioner mischaracterizes the consequences of the California
state court proceeding by asserting that the California court “vacated” his
conviction for assault with a deadly weapon. [CV Doc. 1-1 at 9]. The
Petitioner was convicted of violating California Penal Code § 245(a), which
criminalizes “assault . . . with a deadly weapon . . . or by any means of force
likely to produce great bodily injury.” Cal. Penal Code § 245(a)(1) (1999).
The California court merely amended the judgment to remove the references
to a deadly weapon, thereby clarifying that the Petitioner’s violation of §
245(a) was based on assault by means of force likely to produce great bodily
injury, not assault with a deadly weapon. As such, the California court’s
amendment of the judgment did not vacate the Petitioner’s conviction under
§ 245(a) at all.
More importantly, the predicate in § 245 upon which the Petitioner’s
conviction was based is irrelevant because either predicate would have
constituted a crime of violence sufficient to support the career offender
enhancement. A defendant is a career offender if: (1) he was at least 18
years old at the time of the instant offense; (2) the instant offense is a felony
crime of violence or controlled substance offense; and (3) he has at least two
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other prior felony convictions for a crime of violence or controlled substance
offense. U.S.S.G. § 4B1.1(a). Assault with a deadly weapon and assault
with force likely to produce great bodily injury under California law are both
categorically crimes of violence. Sunum v. Barr, 778 F. App'x 538, 539 (9th
Cir. 2019); United States v. Grajeda, 581 F.3d 1186, 1196 (9th Cir. 2009);
United States v. Cisneros-Cuevas, No. 15-CR-1837-BAS, 2017 WL 432817,
at *3 (S.D. Cal. Jan. 31, 2017). As such, the Petitioner was convicted of a
crime of violence regardless of whether the § 245(a) conviction was for
assault with a deadly weapon or assault with force likely to produce great
bodily injury. Because the Petitioner also had previously been convicted of
a controlled substance offense, the Court appropriately designated him as a
career offender.3 U.S.S.G. § 4B1.2. Therefore, the California court’s
amendment of the judgment did not create a basis for the Petitioner’s § 2255
petition. Accordingly, the Petitioner’s motion is an unauthorized successive
motion under § 2255.4
3 While the Petitioner disputes the description of his prior conviction as being for
possession of “rock cocaine,” he does not dispute that such a conviction qualifies as a
controlled substance offense for career offender enhancement purposes. [CV Doc. 1-1 at
8].
4 The Court usually provides a pro se § 2255 petitioner with an opportunity to respond
before imposing a limitations bar. It was unnecessary to do so in this case because the
Petitioner fully briefed limitations in his § 2255 petition and supporting memorandum, and
his claims would alternatively fail on the merits.
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Even if this motion did not constitute a successive § 2255 motion, the
Petitioner still would not be entitled to relief on the merits. The Petitioner
claims that the PSR and the Fourth Circuit Court of Appeals both erred by
stating that he has been convicted of assault with a deadly weapon because
he was never convicted of using a deadly weapon and the California court
has since struck all references to a deadly weapon from the judgment. [CV
Doc. 1-1 at 4]. As such, the Petitioner claims that the Court’s sentence
should be vacated because the career offender enhancement was based on
a non-existent conviction for assault with a deadly weapon and therefore the
Court erred by applying the enhancement to him. [Id. at 10].
With regard to the PSR, the Petitioner was convicted under a statute
that criminalizes “assault . . . with a deadly weapon . . . or by any means of
force likely to produce great bodily injury . . . .” Cal. Penal Code § 245(a)(1)
(1999).5 The PSR parallels the language of § 245 and states that the
Petitioner was convicted of “assault with a deadly weapon or force likely to
produc[e] great bodily injury.” [CR Doc. 189 at ¶ 29 (emphasis added)]. As
such, the language in the PSR accurately characterizes the Petitioner’s
5 The Petitioner contends that he “pled no contest to ‘assault by any means of force[.]’”
[CV Doc. 1-1 at 9]. The transcript of the state court proceedings, however, shows that
the Petitioner pled no contest to “assault with means likely to produce a great bodily harm”
in “violation of 245(a) of the Penal Code[.]” [CV Doc. 1-2 at 23-24]. As such, the
Petitioner’s argument inaccurately describes the offense for which he was convicted.
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conviction. Although the California Penal Code was amended in 2011 to
separate the two predicate offenses under § 245 into two distinct statutory
provisions, A.B. 1026, Cal. Legis., 2011-2012 Sess., Ch. 183 (Ca. 2011),
that amendment does not affect the Petitioner’s conviction in 1987. As such,
the Petitioner’s arguments regarding the alleged errors in the PSR are
without merit.6
The Petitioner further argues that the Fourth Circuit erred by referring
to his conviction as being for “assault with a deadly weapon” in its order
denying his direct appeal. United States v. Scott, 40 Fed. App’x. 807, 808
(4th Cir. 2002). While the Fourth Circuit’s abbreviated description did not
contain the additional language from § 245 regarding assault with “force
likely to produce great bodily injury,” assault with a deadly weapon and
assault with force likely to produce great bodily injury under California law
are both categorically crimes of violence. Sunum, 778 F. App'x at 539;
Grajeda, 581 F.3d at 1196; Cisneros-Cuevas, 2017 WL 432817, at *3. As
such, the Petitioner would have qualified as a career offender regardless of
the prong upon which the § 245 conviction was based. Accordingly, the
6 Moreover, the Court already denied the Petitioner’s request to correct his PSR because
that request asserted a substantive challenge to the information presented in the PSR
long after the appropriate time for making such a challenge. [CR Doc. 193 (citing United
States v. Davis, No. PJM 00-0424, 2012 WL 8466126, at *1 (D. Md. Nov. 2, 2012))].
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Fourth Circuit’s characterization of the Petitioner’s conviction as “assault with
a deadly weapon” rather than “assault with a deadly weapon or force likely
to produce great bodily injury” is without consequence. Therefore, the
Petitioner’s arguments regarding the alleged errors in the Fourth Circuit’s
abbreviated description of the Petitioner’s conviction are without merit. For
these reasons, the Petitioner’s arguments regarding the description of his
conviction in the PSR and the Fourth Circuit’s order do not constitute grounds
for finding the career offender enhancement was inappropriate.
The Petitioner further asserts that his trial counsel rendered ineffective
assistance by failing to investigate whether he had been convicted of assault
with a deadly weapon. [CV Doc. 1-1 at 12]. The Respondent moves to
dismiss the Petitioner’s ineffective assistance claim on the grounds that it is
without merit. [CV Doc. 5 at 14].
To establish a claim of ineffective assistance of counsel, Petitioner
must first establish a deficient performance by counsel and, second, that the
deficient performance prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). In making this determination, there is “a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689; see also United States v. Luck, 611
F.3d 183, 186 (4th Cir. 2010). Furthermore, in considering the prejudice
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prong of the analysis, the Court “can only grant relief under . . . Strickland if
the ‘result of the proceeding was fundamentally unfair or unreliable.’” Sexton
v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell,
506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears
the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d
112, 120 (4th Cir. 2008). If the petitioner fails to meet this burden, a
“reviewing court need not even consider the performance prong.” United
States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on
other grounds, 218 F.3d 310 (4th Cir. 2000).
The Petitioner fails to show that he was prejudiced by his counsel’s
alleged failure to investigate whether he was convicted under the assault
with deadly weapon prong or the assault with force likely to produce great
bodily injury prong of § 245. As discussed, each prong of § 245 constitutes
a crime of violence. As such, even if the Petitioner’s trial counsel had
investigated his prior convictions, there is no reasonable probability that the
Petitioner would not have been subject to the career offender enhancement.
Accordingly, the Petitioner’s ineffective assistance of counsel claim is without
merit.
For these reasons, the Petitioner’s § 2255 motion is also without merit.
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IV. CONCLUSION
For the foregoing reasons, the Respondent’s Motion to Dismiss the
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence [CV Doc. 3, as
amended, CV Doc. 5] will be granted. The Petitioner’s Motion to Vacate
pursuant to 28 U.S.C. § 2255 [CV Doc. 1] will be denied and dismissed.
The Court further finds that the Petitioner has not made a substantial
showing of a denial of a constitutional right. Accordingly, pursuant to Rule
11(a) of the Rules Governing Section 2255 Cases, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong); Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (holding that when relief is denied on
procedural grounds, a petitioner must establish both that the correctness of
the dispositive procedural ruling is debatable, and that the petition states a
debatably valid claim of the denial of a constitutional right).
O R D E R
IT IS, THEREFORE, ORDERED that:
1. The Respondent’s “Motion to File a Corrected Motion” [CV Doc. 4]
is GRANTED.
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2. The Respondent’s Motion to Dismiss the Petitioner’s Motion to
Vacate, Set Aside, or Correct Sentence [CV Doc. 3, as amended, CV
Doc. 5] is GRANTED.
3. The Petitioner’s Motion to Vacate pursuant to 28 U.S.C. § 2255 [CV
Doc. 1] is DENIED and DISMISSED WITH PREJUDICE.
4. Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases,
this Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
Signed: September 8, 2020
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