USA v. Brown et al

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

CIVIL NO. 1:03CV251
(1:00CR69-5)

AMOS JUNIOR SCOTT, )
Petitioner,
Vs. : MEMORANDUM AND ORDER
UNITED STATES OF AMERICA, :
Respondent. )

THIS MATTER is before the Court on the Petitioner's motion pursuant to
28 U.S.C. § 2255 to vacate, set aside or correct his sentence, filed October
10, 2003, his supplement to that motion, filed December 2, 2003, his
motion to amend, filed January 16. 2004, a motion to expand the record,
filed July 20, 2004, a motion to supplement, filed February 3, 2005, and a
letter of clarification, filed September 12, 2005. The motion to expand the
record Is denied, but the Court will allow the filing of the supplemental

matters. No response is necessary from the Government.

0 Page 1 of 20

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|. STANDARD OF REVIEW

A prisoner in federal custody may attack his conviction and sentence on
the grounds that tt is in violation of the Constitution or United States law, was
imposed without jurisdiction, exceeds the maximum penalty, or is otherwise
subject to collateral attack. 28 U.S.C. § 2255. However,

Lif it plainly appears from the face of the motion and any annexed
exhibits and the prior proceedings in the case that the movant is
not entitled to relief in the district court, the judge shall make an
order for its summary dismissal and cause the movant to be
notified.

Rule 4, Rules Governing Section 2255 Proceedings for the United States
District Courts. The Court, having reviewed the record of criminal

proceedings, enters summary dismissal for the reasons stated herein.

Il. PROCEDURAL HISTORY
On September 11, 2000, the Petitioner was charged in a one-count bil!

of indictment with conspiracy to possess with intent to distribute a quantity of

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september 11, 2000. The indictment specifically charged that the

conspiracy involved at least 5 kilograms of cocaine. Id. On that same date,

3

the Government filed an information noting the Petitioner’s prior felony
conviction for possession of drugs. Information pursuant to Title 21, U.S.C. §
851, filed September 11, 2000. On January 12, 2001, the Petitioner was
found guilty by jury verdict of the sole count of the indictment. Verdict Sheet,
filed January 12, 2001. The verdict sheet contained a special interrogatory

pursuant to which the jury found the conspiracy involved at least 5 kilograms

of cocaine. fd. On August 17, 2001, the undersigned sentenced the
Petitioner to life imprisonment.’ Judgment in a Criminal Case, filed

september 13, 2001. In imposing this sentence, the undersigned agreed

with Petitioner’s attorney as to one objection to the presentence report and

noted that modification on the Judgment. Id.

‘The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466
(2000), that other than a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to
the jury and proven beyond a reasonable doubt. Because the indictment
specified and the jury found that drug quantity at issue and because the
Petitioner had a prior felony drug conviction, the maximum sentence
prescribed by the statute was life imprisonment. 21 U.S.C. § 841(b)(1)(A)GD
(“If any person commits such a violation after a prior conviction for a felony
drug offense has become final, such person shall be sentenced to a term of
Imprisonment which may not be less than 20 years and not more than life
imprisonment[.]”). .

: $ led 11/07/05___ Page 3 of 20

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On July 12, 2002, the United States Fourth Circuit Court of Appeals

affirmed the Petitioner’s conviction and sentence. United States v. Scott, 40
Fed. Appx. 807 (4" Cir. 2002), cert. denied, 537 U.S. 1140 (2003). In
that decision, the Fourth Circuit found the undersigned did not err in admitting

evidence of the Petitioner’s affiliation with a street gang or of hotel
registrations and telephone records, and did not allow “bolstering” of the

testimony of an agent for the Federal Bureau of Investigation. fd. The Circuit

also found that the Petitioner was properly sentenced as a career offender and

the enhancement for his role in the offense was proper. /d. The Petitioner’s
petition for a writ of certiorari was denied by the Supreme Court on January
13, 2003.

On October 10, 2003, the Petitioner timely filed this motion pursuant to

28 U.S.C. § 2255. In this motion, the Petitioner claims he received

ineffective assistance of counsel.

CcreAR
tl. DISCUSSION

In considering Petitioner's claims that he has not received adequate

assistance of counsel,

.

tlirst, the defendant must show that counse}'s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment. second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.

Strickland v. Washington, 466 U.S. 668, 686 (1984). Unless a defendant
makes both showings, his claim of ineffective assistance of counsel must fail.
ld. Thus, a defendant must show that counsel's nerformance fell below
objective standards of reasonableness and, that but for his conduct, there was
a reasonable probability the result would have been different. Id., at 688:
Hill y. Lockhart, 474 U.S. 52 (1985): Fields V. Attorney Gen., 956 F.2d
1290 (4th Cir. 1992). If the defendant fails to make the first showing, there
Is nO need to consider the second. Strickland, supra.

Petitioner's first claim is that his trial counsel failed to investigate and
obtain evidence to prove that his probationary sentence for a prior conviction
was never revoked. The Petitioner’s status as a career criminal, he contends,
was erroneously assessed due to this ineffective assistance. The Petitioner

does not deny, and did not at sentencing, that he was convicted in 1987 in

California for assault with a deadly weapon and sentenced to four years

6

imprisonment with a suspended sentence of five years. Presentence Report,
dated April 19, 2001, at 7. The Probation Officer found that the Petitioner's
probation was revoked on April 24, 1989, and an active sentence of two
years imprisonment was imposed. /d. Because his probationary sentence
was revoked, in calculating the Petitioner's criminal history points, the
Probation Officer counted the points attributable to this sentence. See,
U.S.S.G. §§ 4A1.1 and 4A1.2(k). Because the Probation Officer counted
these points, it placed the Petitioner into a career offender category.

In an effort to avoid this status, the Petitioner claims that his probation
was never revoked. It appears, based on documents provided by the
Petitioner, however, that he is confused. On October 25, 1986, the Petitioner
was arrested In San Joaquin County, California, and charged with first degree
murder in the case of California v. Amos Scott, Case No. 39348.°
Presentence Report, supra. On July 13, 1987, he pled guilty to a reduced

charge of a violation of California Penal Code § 245(a), assauit with a deadly

‘On October 25, 1986, the Petitioner shot and killed Pau! Saucier in
stockton, California. His co-conspirator in the present case, George McBride,
was present when Saucier was killed. |

/

weapon of force likely to produce great bodily injury, and was sentenced to
four years imprisonment, suspended for five years. Id.

On March 8, 1989, the Petitioner appeared in state court in California
in the case of California v. Amos Scott, Case No. 44225, in which he was
charged with a felony drug violation, possession of rock cocaine. Appendix 1,
attached to Petitioner’s § 2255 Motion [“Petitioner’s Motion”]. The
Petitioner entered a guilty plea to that charge and was advised by the judge
that he would be sentenced to a two-year term of imprisonment. Appendix 2,

_attached to Petitioner’s Motion. The Petitioner’s attorney noted on the record

that the plea agreement for the drug charge included a provision that if the -
Petitioner's probationary sentence in “the 245 case,” ie. the above case for a
violation of California Penal Code §245, assault with a deadly weapon, was
revoked due to his conviction for the drug offense, the Petitioner’s prison
sentence in Case No. 44225, the drug case, would run concurrently to any

active term ultimately to be imposed in “the 245 case,” the assault case.

Appendix 2-3, attached to Petitioner’s Motion. In other words, both defense

counsel and the California court anticipated that the Petitioner's conviction

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and sentence to two years imprisonment for the drug charge would result in a
revocation of his probationary sentence in the assault case.
That is, in fact, what occurred, as the documents submitted by the

, Petitioner show. The Judgment entered on April 24, 1989, sentenced the
Petitioner to two years imprisonment for the drug conviction and cross-
referenced his assault case, Case No. 39348. Appendix 4-5, attached to
Petitioner’s Motion. His probation was revoked and he was sentenced to a
concurrent term of two years imprisonment on April 24, 1989.

_ The confusion stems from the Petitioner's misreading of a document
issued in May 1992. On May 5, 1992, the Petitioner’s California probation

officer issued a report explaining that on June 1, 1989, not April 24, 1989,

the officer had mistakenly requested a bench warrant for the Petitioner’s
violation of probation in the assault case. Appendix 6, attached to Motion.
The request was a mistake because the officer requested a violation “on the
basis of offenses for which the [Petitioner] had already been sentenced to
state Prison. bation had already

been revoked due to his conviction for the drug charge, the probation officer

mistakenly issued a violation report because he did not know that the

9

Petitioner had already been sentenced to two years Imprisonment on the drug
charge to run concurrently with the sentence for the revoked probationary
Sentence. Instead of proving that the Petitioner’s probationary sentence was

never revoked, the documents provided by the Petitioner prove that it was, In

fact, revoked. The Petitioner’s claim of ineffective assistance of counsel on

this issue is, therefore, rejected.

Moreover, this same issue was raised and rejected on direct appeal.

The Fourth Circuit noted:

scott next contends that the district court Clearly erred in
sentencing him as a career offender. Because Scott had prior
felony convictions for assault with a deadly weapon and
possession of “rock” cocaine, the district court did not Clearly err
in sentencing him as a career offender. We further conclude that
scott's claim that he did not receive notice of the assault with a
deadly weapon conviction is meritless.

Scott, 40 Fed. Appx. at 808 (internal citations omitted). Since this issue
was ralsed and determined on direct appeal, the Petitioner may not use a
collateral attack to relitigate the same claim. United States v. Rush, 99 Fed.
Appx. 489, 490 (4" Cir. 2004) (citing Boeckenhaupt v. United States, 537

F.2d 1182, 1183 (1976) (issues raised and determined on direct appeal

may not be reconsidered by a collateral attack)).

10

The Petitioner next claims that because his probationary sentence was
never revoked, he never served an active sentence and, therefore, his assault
conviction may not be counted toward career offender status. He also argues,

variously, that even if it were revoked, his 1987 conviction is outside the 15
year time period specified in the Sentencing Guidelines.
A defendant ts a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the
instant offense of conviction, (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled

substance offense, and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled

substance offense.
U.S.8.G. § 4B1.1. “Prior felony conviction’ means a prior adult federal or

state conviction for an offense punishable by death or imprisonment for a term

exceeding one year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence imposed.”
U.S.8.G. § 4B1.2, comment. (n.1). However, if the prior sentence was

suspended, it does not count. U.S.S.G. § 4A1.2(b)(2) (“If part of a sentence

of imprisonment was suspended, “sentence of imprisonment” refers only to

the portion that was not suspended.”). Thus, the Petitioner's 1987 assault

conviction would not qualify as a prior felony conviction because it was a

1]
Suspended sentence. United States v. Romary, 246 F.3d 339, 342-43 (4*

Cir. 2001). However, when that suspended sentence was later revoked in
1989 and the two year sentence imposed, the original conviction then
qualified as a prior adult felony conviction imposed within 15 years of the
1999 commencement of this offense. /d. Thus, this argument as well is
rejected.

Petitioner makes the same claim of ineffective assistance against his
appellate counsel, using the same arguments. For the reasons stated /nfra,
that claim as well is dismissed.

_- Some months after the Petitioner filed his § 2255 motion, he submitted
for filing an affidavit from his trial counsel, Andrew Banzhoff, in which Mr. -
Banzhoff averred as follows:

| relied upon the representations in the [presentence] report, and

did not independently review the judgment in [the California]

case. Furthermore, | had no reason at that time to doubt the
validity of the representation in the report.

! did not file an objection to the use of this conviction, because

' 1 1 Lara im AiaaktaH +L, «+ ns de be
my review of the guideline provisions indicated that if the

probation was revoked as stated, that there were no legitimate
grounds for attacking the conviction.

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[HJad | been aware of the possible dispute regarding the probation

revocation, | would have filed an objection to the conviction.? [I]t

is my belief that . .. the only way the conviction could be used

were If the probation was revoked and a sentence in excess of one

year and one month was actually imposed.
Appendix 10, Affidavit of Andrew Banzhoff, attached to Petitioner’s
Amendment and Supplemental Petition pursuant to Title 28 U.S.C. 2255
and F. R. Civil P. Rule 15, filed December 2, 2003 (footnote added). Mr.
Banzhoff was not ineffective in relying on the representations in the

presentence report. Taylor v. United States, 2005 WL 1950148, **2 (W.D.

Va. 2005) (failure to object was not ineffective assistance of counsel
~ because enhancement was correct). And, more to the point, the Probation
Officer was correct; the Petitioner’s suspended sentence was, in fact, revoked,
as the documents he has placed before the Court disclose. Thus, assuming
arguendo that Mr. Banzhoff was ineffective, the Petitioner suffered no
prejudice. Daniels vy. United States, 532 U.S. 374, 376 (2001) (With the
sole exception of the right to counsel, a federal prisoner may not attack a

— ;

edicate state conviction used to enhance a federal sentence through a

pr

*Mr. Banzhoff, did, however alert the Court to the fact that the Petitioner
thought the report “inaccurately represent[ed] the nature of the offense and

the actual sentence” in the objections which he filed to the presentence
report.

13
motion pursuant to § 2255.); United States v. Gadsen, 332 F.3d 224, 227-

28 (4" Cir. 2003); McCarthy v. United States, 320 F.3d 1230 (11" Cir.
2003).

Petitioner next claims that trial counsel was Ineffective because he did
not object to the form of the verdict sheet which contained an interrogatory
pursuant to which the jury found the conspiracy involved at least five
kilograms of cocaine. The jury, he argues, should have found the amount of
drugs with wnich the Petitioner himself was involved.

The bill of indictment charged that the “conspiracy tnvolved at least five
kilograms” of cocaine. Bill of Indictment, supra. The Verdict Sheet contained
the following:

As to the charge contained in the Bill of Indictment, do you find
the Defendant, Amos Junior Scott -

GUILTY: NOT GUILTY:

lf you find the Defendant guiity of the charge contained in the
Indictment, then answer the next issue... .

LM

AS tO tne C! argee On Te CEIL, did the
at

conspiracy des cribe din the indictment involve at least five
kilograms of a mixture or substance containing a detectable
amount of cocaine?

YES: NO:

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Verdict Sheet, filed January 12, 2001. The jury answered “Guilty” and

“Yes.” The Petitioner's sentence, therefore, did not violate Apprendi or
Blakely v. Washington, 942 U.S. 296 (2004), because, first, the indictment
contained the amount of cocaine at issue and, second, the verdict sheet also
contained a specific finding as to drug amount. Petitioner claims the Jury

_ Should have found the amount of drugs attributable to his personal conduct
instead of that attributable to the conspiracy.

Apprendi requires the jury only to set the “maximum sentence
([/.e., the] ceiling)” under which each coconspirator’s sentence
must fall. The judge, however, may determine the “floor” by
finding the precise drug quantity attributable to each co-
conspirator. The jury is not required to make individualized
findings as to each coconspirator because “[t]he sentencing
judge’s findings do not, because they cannot, have the effect of
increasing an individual defendant’s exposure beyond the
statutory maximum justified by the jury’s guilty verdict.”

Booker* does not alter the well-established rule that a finding of
drug type and quantity for the conspiracy as a whole sets the
maximum sentence that each coconspirator can constitutionally
be given. Therefore, the practice outlined above is entirely
consistent with Apprendi and Booker because the jury sets the
applicable “statutory maximum” by determining the type and
quantity of drugs attributed to the conspiracy as a whole while the
judge's findings have the effect only of potentially decreasing an
individual defendant’s sentence.

“United States v. Booker, 125 S. Ct. 738 (2005).

Page 14 of 20

ike
United States v. Stiger, 413 F.3d 1185, 1192-93 (10" Cir. 2005) (quoting

United States v. Knight, 342 F.3d 697, 711 (7" Cir. 2003) (other internal
citations omitted) (footnote added): accord, United States v. Mercado
frizarry, 404 F.3d 497, 503 (1° Cir. 2005) (“The maximum statutory
_ penalty available to the district court at sentencing for a defendant convicted
of a drug conspiracy is based on the drug quantity and amount reflected in
the jury verdict attributable to the conspiracy as a whole.”): United States v.
Casiano, 133 Fed. Appx. 791, 796 (2d Cir. 2005); United States v. Odman,
47 Fed. Appx. 221, 223 (4" Cir. 2002),

The Petitioner’s next argument is rejected for a similar reason. He
claims that he was entitled to have his role in the conspiracy found by the jury
beyond a reasonable doubt. However, the Petitioner’s sentence did not
exceed the statutory maximum and thus, any enhancements found by the
undersigned at sentencing did not offend Apprendi, Blakely, or Booker.

United States v. Jimenez, 142 Fed. Appx. 685 (4" Cir, 2005).

In July 2004, the Petitioner moved to “add additional support to initial

Foo —_ “a

2255 motion and expand the record.” The undersigned allowed the filing of

two additional pleadings after the initial motion: the December 2, 2003,

16

amendment and the January 16, 2004, motion to amend. Technically, only
the December 2003 filing should have been allowed. Fed. R. Civ. P. 15(a)
(“A party may amend the party’s pleading once as a matter of course at any
time before a responsive pleading is served[.] Otherwise a party may amend
the party’s pleading only be leave of court[.]”); Whab v. United States, 408
F.3d 116, 119 (2d Cir. 2005). A prisoner attacking his sentence is not
entitled to continuously add new grounds while the petition is pending. /d., at
n.2. Allowing a motion to amend “should not be misconstrued as providing a
free pass to prisoners to file numerous petitions before an initially filed petition
is finally adjudicated on the merits. Traditional doctrines, such as abuse of
the writ, continue to apply.” /d. Otherwise, the statute of limitations
provision contained within the statute would be meaningless. Burns v. United
States, 2005 WL 2656095 (11" Cir. 2005). In any event, the ssues raised
are merely repetitions of the claims previously submitted and are rejected for

the same reasons.

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On February 3, 2005, th

ia Petit fj

+L,
€titioner yet anomer suppiement

original petition, raising Apprendi, Blakely and Booker as grounds for relief.

The Petitioner's sentence, which does not exceed the prescribed statutory

17

maximum sentence of life imprisonment, does not violate the proscriptions of
Apprendi. United States v. Bradford, 7 Fed. Appx. 222, 223 n.* (4" Cir.
2001) (citing United States v. White, 238 F.3d 537, 542 (4° Cir. 2001)).
In Blakely, decided in June 2004, the Supreme Court held that Washington
otate’s statutory sentencing scheme violated Apprendi because the sentencing
court used aggravating factors, to which the defendant had not stipulated in
his plea agreement, to enhance the defendant’s sentence above the
sentencing guideline range. Blakely does not apply retroactively to
~ convictions that were final at the time that case was decided.’ United States
v. Price, 400 F.3d 844 (10" Cir. 2005); Varela v. United States, 400 F.3d
864 (11" Cir. 2005); Cooper-Smith v. Palmateer, 397 F.3d 1236 (9" Cir.
2005); Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005); United
States v. Marshall, 117 Fed. Appx. 269 (4" Cir. 2004).

in Booxer, the Supreme Court held that the United States Sentencing

Guidelines, as a mandatory sentencing procedure, are unconstitutional but

that they may be used as an advisory

u ) advisory guide by senten

cing calirte Cars
1?twl eli lp Lah LI La La.

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circuit court which has addressed the issue of whether Booker may be applied

“The Supreme Court declined to allow the Petitioner's motion for a writ of
certiorari on January 13, 2003.

18

retroactively to cases on collateral review has held that Booker is not
retroactive. United States v. Cruz, 423 F.3d 1119 (9" Cir. 2005): United
States v. Bellamy, 411 F.3d 1182 (10" Cir. 2005): Lioyd v. United States,
407 F.3d 608 (3d Cir. 2005): Guzman v. United States, 404 F.3d 139 (2d
Cir. 2005); Varela, supra; Humphress v. United States, 398 F.3d 855 (6"
Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7™ Cir.), cert.
denied, 125 S. Ct. 2559 (2005) (“We conclude, then, that Booker does not
apply retroactively to criminal cases that became final before its release on
January 12, 2005.”); In re Anderson, 396 F.3d 1336, 1339 (11" Cir. — -

2005): United States v. Johnson, 2005 WL 2705818, **1 n.2 (4" Cir.

2005).

IV. ORDER
IT IS, THEREFORE, ORDERED that the Petitioner's motions to

supplement or amend his § 2255 motion filed December 2, 2003, January

tor wt ex a | Teta" ,
16, 2004, and February 3, 2005, are ALLOWED: the Petitioner's motion to

add additional support and expand the record filed July 20, 2004, is

DENIED.

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IT 1S FURTHER ORDERED that the Petitioner's motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255 is hereby DENIED.

A Judgment dismissing this action is filed herewith.

20

signed: November 7, 2005

Lacy H. Thornburg
United States District Judge