Scott v. U.S.

• Decision Date: 15 September 2010
• Docket Number: Case No. 09-14179-CIV
• Citation: Scott v. U.S., 740 F.Supp.2d 1317 (S.D. Fla. 2010)
• Parties: Tyrone David SCOTT, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Florida

740 F.Supp.2d 1317

Tyrone David SCOTT, Movant,

v.UNITED STATES of America, Respondent.

Case No. 09-14179-CIV.

United States District Court, S.D. Florida.

Sept. 15, 2010.

Tyrone David Scott, Herlong, CA, pro se.

Diana Margarita Acosta, United States Attorney's Office, Fort Pierce, FL, for Respondent.

ORDER GRANTING MOVANT TYRONE DAVID SCOTT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255; DECLINING TO ADOPT MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Movant Tyrone David Scott's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (dkt. # 1). This matter was referred to the Honorable Patrick A. White, United States Magistrate Judge, who issued a Report and Recommendation (dkt. # 16). The government filed Objections (dkt. # 19) and Scott filed a Response (dkt. # 20).

UPON CONSIDERATION of the Motion, the Report and Recommendation, the Objections and Response, after de novo review of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND

This matter involves Movant Tyrone David Scott's ("Scott") contention that he is entitled to be resentenced because he was erroneously sentenced as a career offender. On November 18, 2004, Scott wascharged by Indictment of two counts of possession with intent to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On February 28, 2005, Scott pled guilty to Count 2 of the Indictment. Prior to sentencing, a PSI was prepared, revealing that pursuant to United States Sentencing Guideline § 4B1.1(a), Scott qualified as a career offender because he was at least 18 years old at the time of the instant offense, the instant offense was a felony controlled substance offense, and he had at least two prior felony convictions of either a crime of violence or a controlled substance offense. In reaching this conclusion, one of the prior offenses on which the PSI relied was a conviction for carrying a concealed firearm.

At sentencing, Scott argued the he did not qualify as a career offender because his conviction for carrying a concealed firearm was not a "crime of violence" under U.S.S.G. § 4B1.1(a). The Court overruled the objection, in accordance with Eleventh Circuit precedent at the time, and sentenced Scott to 235 months in prison. Scott appealed his sentence on grounds that his classification as a career offender was erroneous. The Eleventh Circuit denied his claim and affirmed his sentence. United States v. Scott, 163 Fed.Appx. 791 (11th Cir.2005). Scott's conviction became final on June 26, 2006. Scott v. United States, 548 U.S. 914, 126 S.Ct. 2956, 165 L.Ed.2d 968 (2006). The instant motion was filed on June 3, 2009.

II. ANALYSIS

A. Scott's Classification as a Career Offender

Scott contends that although his Motion to Vacate was untimely filed he is (1) entitled to equitable tolling, and (2) he is entitled to have his claim heard pursuant to the manifest injustice exception, or in other words that he is actually innocent of being a career offender. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a movant has one year to file a motion attacking the sentence under § 2255. 28 U.S.C. § 2255(f). This one-year period runs from the latest of the date on which the judgment becomes final, or "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. at § 2255(f)(1) and (3).¹

On April 16, 2008, the United States Supreme Court decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), holding that New Mexico's felony offense of driving under the influence of alcohol ("DUI") is not a "violent felony" ² within the meaning of the Armed Career Criminal Act ("ACCA").³See 18 U.S.C. § 924(e)(2)(B).⁴The Court concluded that New Mexico's DUI offense was too dissimilar from the enumerated offenses in the ACCA's definition of "violent felony" because it was not "roughly similar, in kind as well as in degree of risk posed." Begay, 553 U.S. at 143, 128 S.Ct. 1581. The Court went on to state that New Mexico's DUI offense differed from the offenses enumerated in the ACCA's "violent felony" definition because those crimes all typically involve "purposeful, violent and aggressive conduct," making it "more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim." Id. at 145, 128 S.Ct. 1581 (internal quotation marks omitted). "By way of contrast, statutes that forbid driving under the influence, such as the [New Mexico DUI statute], typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all." ⁵Id.

Begay thus established a new standard for determining whether an offense constitutes a "violent felony" or "crime of violence." Scott now claims that he was erroneously sentenced as a career offender because his prior conviction for carrying a concealed firearm does not qualify as a "crime of violence." Scott's contention that he was erroneously sentenced as a career offender is correct. Two months after Begay, the Eleventh Circuit applied the Begay standard and concluded that carrying a concealed firearm is not a "crime of violence." United States v. Archer, 531 F.3d 1347 (2008). The Eleventh Circuit subsequently concluded that Begay and Archer apply retroactively. Gilbert v. United States., 609 F.3d 1159, 1164 (11th Cir.2010) (stating that Begay is a "circuit law busting, retroactive Supreme Court decision"),⁶mandate held, 610 F.3d 716 (11th Cir.2010). ⁷ The Eleventh Circuithas also held that a Begay challenge to a petitioner's erroneous classification as a career offender is cognizable on collateral attack.

In light of Begay and Archer, there is no doubt that Scott was erroneously sentenced as a career offender, and thus that he is actually innocent of being a career offender. Scott's sentence was "enhanced based upon a nonexistent offense-being a career offender with only one prior [qualifying] felony," and as such he was sentenced "for an act that the law does not make criminal." Gilbert, 609 F.3d at 1165.⁸ Id. Thus, Scott is actually innocent of being a career offender.

B. Equitable Tolling

Before delving into the significance of Scott's actual innocence, this Court must first address Scott's claim that the instant petition is not time barred because he is entitled to equitable tolling. As stated above, Begay was decided on April 16, 2008, giving Scott until April 16, 2009, to file his Motion to Vacate. See 28 U.S.C. § 2255(f)(3). Scott filed his Motion to Vacate on June 3, 2009. Scott claims that although his Motion was untimely under § 2255(f)(3), he is nevertheless entitled to equitable tolling because Begay was not available in the prison library until July of 2008.

The issue of whether a prisoner is entitled to equitable tolling when a change in the law is unavailable to a prisoner during part of the one year in which the prisoner has to file a habeas petition has been raised before in this Circuit. As a general matter, equitable tolling of the AEDPA's statute of limitations is applied sparingly. Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir.2006). The AEDPA's statute of limitations may be equitable tolled "if the petitioner demonstrates (1) diligence in his efforts to timely file a habeas petition and (2) extraordinary and unavoidable circumstances." Id. (citing Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999)). "To show diligence, a petitioner claiming deficiencies in the prison law library" must show "when he found out about the library's alleged deficiency, must 'state any independent efforts he made to determine when the relevant limitations period began to run' and must demonstrate how the prison 'thwarted his efforts.' " Id. at 1253 (citing Helton v. Sec'y for the Dep't of Corrs., 259 F.3d 1310, 1314 (11th Cir.2001)). "The focus of the inquiry regarding extraordinary circumstances is on the circumstances surrounding the late filing of the habeas petition ... and whether the conduct of others prevented the petitioner from timely filing." Id.

Scott argues that the AEDPA's statute of limitations should be tolled to account for the period from April 16, 2008, through July of 2008 when he states that Begay was not yet available in the prison library. As an initial matter, Scott asserts in his Response to the Government's Response to Order to Show Cause (dkt. # 18) that Begay did not become available in the prison library until July of 2008, but provides no evidence to support this allegation. Scott's unsupported assertion concerning Begay' s unavailability is factuallyinadequate to support his argument. Even if this were not the case, however, Begay' s unavailability in the prison library for approximately three months would not, without more, warrant equitable tolling. Once Begay became available in the prison library, Scott is presumed to have known that the AEDPA's statute of limitations under § 2255(f)(3) had been triggered on the date that the opinion in Begay issued. Scott has failed to demonstrate diligence in filing his habeas petition because he gives no reason why the remaining nine months were insufficient to file his Motion to Vacate. See McKenzie v. United States, No. 09-20447-CIV, 2009 WL 3836450, at *5 (S.D.Fla. Nov. 16, 2009) (stating that "movant's conclusory allegations regarding insufficient access to a law library do not justify equitable tolling"); Sutton v. United States, 8:04-cr-325-T-17TBM, 8:09-cv-202-T-17TBM, 2009 WL 890286, at *2 (M.D.Fla. Mar. 31, 2009) (finding that prisoner was not entitled to equitable...