USA v. Brown et al

OCR transcription for search; preserved printed pages are authoritative

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION

CIVIL NO. 1:08CV342-1-T
(1:00CR69)
AMOS JUNIOR SCOTT,
Petitioner,

V. ORDER OF DISMISSAL

UNITED STATES OF AMERICA,

Respondent.

me eee ee eee

THIS MATTER is before the Court following transfer of this action
from the United States District Court for the Eastern District of California.
See Order of United States Magistrate Judge Gregory G. Hollows,
filed July 23, 2008.

Petitioner was convicted in this Court of conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. § 846. Judgment ina
Criminal Case, filed September 13, 2001, at 1. Due in part to his
criminal record (which included several prior state court convictions in
California), he received a sentence of life in prison. Id. at 2. Following an

unsuccessful appeal of his conviction, he filed a petition in this Court,

INFORMATION

2
Petitioner consistently refers to his petition as a “petition for writ of	1
habeas corpus and/or coram nobis pursuant to the ‘All Writs Act,’ 28
U.S.C. § 1651(a).” As Petitioner used a § 2254 form to submit his petition
– and as writs of coram nobis have been abolished in the federal court
system – the Court construes his petition as a § 2254 petition. See Fed.
R. Civ. P. 60(e) (“The following are abolished: bills of review, bills in
the nature of bills of review, and writs of coram nobis, coram vobis,
and audita querela.”(emphasis added)).
seeking to vacate his sentence under 28 U.S.C. § 2255. United States v.
Scott, 40 F. App’x 807 (4 Cir. 2002) (affirming Petitioner’s convictionth
and sentence); Motion Under 28 U.S.C. § 2255, filed October 10, 2003.
The § 2255 petition also proved unsuccessful, both in this Court and on
appeal. Judgment, filed November 7, 2005 (denying Petitioner’s §
2255 motion); 185 F. App’x 292 (4 Cir. 2006) (dismissing appeal fromth
denial of § 2255 petition).
In January 2008, Petitioner filed a habeas corpus petition under 28
U.S.C. § 2254 in the United States District Court for the Eastern District of
California. Petition Under 28 U.S.C. § 2254, filed January 31, 2008. The1
§ 2254 petition attacked his state court convictions in California on the
basis that these convictions were entered in violation of a plea agreement.
Id. at 3. The District Court in California issued an order transferring the §
2254 petition to this Court, stating that the petition should be construed as a
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It is also noted that, were the Court to construe Petitioner’s	2
petition as one under § 2255 (as Magistrate Judge Hollows suggests), this
would be his second § 2255 petition. Such successive petitions are barred
by 28 U.S.C. § 2255(h).
§ 2255 petition to vacate Petitioner’s federal sentence, and therefore, it
must be decided by the sentencing court in this District. Order of
Magistrate Judge Hollows, supra, at 1. Petitioner complains that the
District Court in California should not have construed his § 2254 petition as
a § 2255 petition and that the case should have remained in California.
Letter to Clerk of Court in Western District of North Carolina, filed
August 11, 2008, at 1.
In point of fact – for Petitioner’s purposes – it does not matter whether
his petition is construed under § 2254 or § 2255, as the federal courts
cannot consider his request for relief under either statute. In 2001, in2
companion cases, the United States Supreme Court ruled that neither
§ 2254 or § 2255 is a proper vehicle for challenging a prior conviction, if that
conviction was used to enhance the defendant’s federal sentence but is no
longer open to direct or collateral attack in its own right. Lackawanna
County Dist. Attorney v. Coss, 532 U.S. 394, 401-03 (2001) (barring
challenges to prior convictions under § 2254); Daniels v. United
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Coss and Daniels both note a single exception to this rule:	3
challenges based on a violation of the Sixth Amendment right to counsel.
Coss, 532 U.S. at 404; Daniels, 532 U.S. at 382. Petitioner concedes he
does not fall within this one exception. Petitioner’s Reply to
Respondent’s Response, filed August 14, 2008, at 2.
States, 532 U.S. 374, 381-83 (2001) (barring challenges to prior
convictions under § 2255). Explaining its reasoning, the Supreme Court3
observed:
[T]hese vehicles for review . . . are not available indefinitely and
without limitation. A defendant may choose not to seek review
of his conviction within the prescribed time. Or he may seek
review and not prevail, either because he did not comply with
procedural rules or because he failed to prove a constitutional
violation. In each of these situations, the defendant’s conviction
becomes final and the State that secured the conviction obtains
a strong interest in preserving the integrity of the judgment.
Other jurisdictions acquire an interest as well, as they may then
use that conviction for their own recidivist sentencing purposes,
relying on the presumption of regularity that attaches to final
judgments.
An additional concern is ease of administration of challenges to
expired state convictions. Federal courts sitting in habeas
jurisdiction must consult state court records and transcripts to
ensure that challenged convictions were obtained in a manner
consistent with constitutional demands. As time passes, and
certainly once a state sentence has been served to completion,
the likelihood that trial records will be retained by the local
courts and will be accessible for review diminishes substantially.
Coss, 532 U.S. at 403 (internal citations and quotation marks omitted).
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In this case, Petitioner cites Daniels and concedes that he may not
use § 2255 to collaterally attack the validity of his previous state
convictions. Petitioner’s Reply to Respondent’s Response, filed
August 14, 2008, at 2. He also correctly notes that, pursuant to an earlier
Supreme Court case, Custis v. United States, he was unable to collaterally
attack the validity of his previous state convictions during his federal
sentencing proceedings. Id.; see Custis v. United States, 511 U.S. 485,
496 (1994) (holding that, for reasons similar to those cited in Coss and
Daniels, defendants in federal sentencing proceedings have no
constitutional right to collaterally attack validity of previous state
convictions used to enhance sentence). As noted above, Coss bars
§ 2254 petitions for the same reason Daniels and Custis bar, respectively,
§ 2255 petitions and sentencing challenges. By conceding the applicability
of Daniels and Custis, Petitioner has also effectively conceded the
applicability of Coss and the consequent impermissibility of his petition
under § 2254. Thus, there is no statute enabling the Court to reach the
merits of the petition.
IT IS, THEREFORE, ORDERED that Petitioner’s petition is hereby
DISMISSED WITH PREJUDICE.
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Signed: September 3, 2008

Lacy H. Thornburg
United States District Judge

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