Scott v. United States

• Decision Date: 11 October 2012
• Docket Number: CIVIL ACTION NO. 5:11-cv-143,CRIMINAL ACTION NO. 5:08-cr-347
• Parties: FERRELL DAMON SCOTT Petitioner v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Southern District of Texas

FERRELL DAMON SCOTT Petitioner

v.UNITED STATES OF AMERICA

CIVIL ACTION NO. 5:11-cv-143

CRIMINAL ACTION NO. 5:08-cr-347

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION

Filed: October 11, 2012

OPINION AND ORDER

Pending before the Court is Ferrell Damon Scott's self-styled "Motion to Vacate Conviction (Pursuant to 28 U.S.C. Sec. 2255)."¹ After considering the motion, record, and relevant authorities, the Court DISMISSES the motion in its entirety. The Court GRANTS a certificate of appealability as stated in the conclusion.

I. BACKGROUND

On March 18, 2008, a federal grand jury in Laredo, Texas, returned a four-count indictment charging Ferrell Damon Scott ("Scott") with one count of conspiring to possess with intent to distribute in excess of 1,000 kilograms of marijuana and three counts of possessing in excess of 100 kilograms of marijuana.² After a four-day trial, a jury found Scott guilty on all four counts.³ The Court sentenced Scott to life in prison for Count One, and 240 months for each of the other counts, to run concurrently.⁴ Judgment was entered on April 10, 2009.⁵ Scottappealed his case,⁶ the Fifth Circuit affirmed the judgment of conviction,⁷ and the Supreme Court denied Scott's petition for a writ of certiorari.⁸ On October 31, 2011, Scott filed a motion under 28 U.S.C. § 2255.⁹ Although Scott makes arguments implicating multiple constitutional rights, his entire motion stems from the allegation that one juror in his case was not impartial.

II. DISCUSSION

A. Standard for Relief under 28 U.S.C. § 2255

"Relief under 28 U.S.C.A. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice."¹⁰ Generally, § 2255 claims fall under four categories: (1) challenges to the constitutionality or legality of a sentence; (2) challenges to the district court's jurisdiction to impose the sentence; (3) challenges to the length of a sentence in excess of the statutory maximum; and (4) claims that the sentence is otherwise subject to collateral attack.¹¹ After conducting an initial examination of the motion, the Court must dismiss if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief."¹²

B. Juror Bias

Because Scott claims that his failure to raise the issue of jury partiality on direct appeal was due to his counsel's ineffective assistance, the Court will evaluate the merits of his actual juror bias claim. Additionally, juror bias implicates constitutional concerns that may beappropriately considered on collateral attack. Regarding the impartiality of jurors, the Fifth Circuit stated the following:

The Sixth Amendment guarantees an impartial jury, and the presence of a biased juror may require a new trial as a remedy. A juror is biased if his views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.¹³

"[A] juror must be as indifferent as he stands unsworne."¹⁴ "The [Sixth] Amendment prescribes no specific tests. The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as [a] matter of law."¹⁵ "Actual bias exists when the juror failed to answer a material question honestly on voir dire, and a correct response would have provided a valid basis for a challenge for cause."¹⁶ "[Implied bias exists in] a narrow class of relationships . . . for which a juror can be presumed biased."¹⁷

The Fifth Circuit has "cautioned that 'the [ Supreme] Court has not looked favorably upon attempts to impute bias to jurors,' and that only 'extreme situations' would justify such a finding."¹⁸ In Solis v. Cockrell, the Fifth Circuit reviewed prior cases where it had refused to imply bias:

[W]e rejected a contention that a juror's attenuated familial connection with the victim warranted a presumption that the juror was biased. The victim's grandson had, prior to the victim's death, been married to the juror's daughter. However, the grandson had died prior to the victim's death, and no evidence suggested that the juror even knew that he had at one time been related to the victim. We "refuse[d] to impute bias" to the juror on the basis of such a "tenuous relationship" between him and the victim. Similarly, in United States v. Wilson we held that "friendship with the victim of a defendant's alleged crime does not, standing alone, justify a finding of bias."¹⁹

Scott asserts that he was a victim of juror partiality and asks the Court to find both actual and implied bias. Scott's claim is based on post-trial contact between a juror, "Jane Doe," and one of the Assistant U.S. Attorneys ("AUSA") who prosecuted Scott. This contact was brought to the Court's attention months after the trial, which occurred in July 2008, but before sentencing. The Court addressed Jane Doe's post-trial contact with the AUSA in an in-chambers conference with the two prosecuting AUSAs (one being the subject of the contact) and defense counsel for both Scott and his co-defendant present. Neither Scott nor his co-defendant was present and the in-chambers conference was not recorded. The Court found that the contact occurred exclusively post-trial and did not merit further inquiry.

The Court reviews its prior order addressing this matter before considering whether Scott has raised anything in his current motion that would undermine the Court's previous determination.

1. Previous Order

In its May 17, 2011 order addressing Scott's request for more information regarding a juror, this Court stated:

In 2009, long after the conclusion of Scott's trial, the Court received information that a former juror had contacted one of the Assistant U.S. Attorneys ("AUSA") involved in Scott's prosecution. When the AUSA discovered this person was a former juror, he immediately ceased contact and the Court was notified. The Court thereafter notified defense counsel and then held an ex parte hearing where the juror was interviewed.

Because it appeared that this contact occurred exclusively after the trial, the Court determined that it was unnecessary to hold an evidentiary hearing. This decision is consistent with the Fifth Circuit's decision in United States v. Sylvester, 143 F.3d 923, 932-933 (5th Cir. 1998) (quoting United States v. Webster, 750 F.2d 307, 338-339 (5th Cir. 1984)) which reiterated the distinction between allegations of juror misconduct and allegations of juror tampering. In cases where mere misconduct is alleged, an ex parte hearing may be appropriate. At the hearing in this case the Court was able to confirm that there had been no inappropriate contact between the prosecution and the juror prior to or during thetrial. Specifically, the Court found that there was no pretrial relationship between the juror and the AUSA and that during the trial the juror had no contact with the AUSA beyond the normal, in-court exposure to an attorney that all jurors experience. The Court also determined that the communication began after the conclusion of the trial. Since there was neither evidence that would support a juror tampering claim nor even evidence that would support a claim of juror misconduct, it was unnecessary to follow up with an evidentiary hearing where all parties could be present.

Since the Court has determined that there was no improper contact between the prosecution and the juror during the trial, the only remaining concern is if the juror was somehow improperly influenced by an attraction to the AUSA that developed during the trial.²⁰

The Court then explained that if a juror developed an attraction to the AUSA based on courtroom observations during the trial, such was an "internal" matter which the Court could not inquire into under Federal Rule of Evidence 606(b).²¹ The Court then stated:

There is no indication that the juror was anything but impartial at the outset of this trial; no evidence that the juror answered inaccurately on voir dire; no evidence of any outside influence on this juror during the trial; and no evidence of any communication until long after the trial concluded. In summary, Scott's requests amount to nothing more than a fishing expedition.²²

The Court will now consider the allegations that Scott is making in his § 2255 motion.

2. Current Allegations of Juror Bias

Before turning to the specifics of Scott's current allegations, the Court notes that Scott's factual allegations in his § 2255 motion rely only on his "Declaration." In his "Declaration," Scott claims that he received his information from his attorney.²³ Scott's attorney, in turn, received his information from an ex parte hearing where the Court asked Jane Doe when she first contacted the AUSA. Prior to that hearing, there was no allegation that there had been any contact between Jane Doe and the AUSA before the conclusion of the trial. The solepurpose of the hearing was to determine whether the contact began before, during, or after trial.²⁴ At the hearing, the Court found that all contact occurred exclusively post-trial.²⁵ Scott's current allegations do not change this finding as the allegations are either based on information from Scott's attorney who only had the information available to the Court or based on Scott's speculation. (For example, on page six of Scott's § 2255 motion, Scott directs the reader to his "Declaration" for the particulars of his allegations.²⁶ That declaration attributes Scott's knowledge solely to his conversation with his attorney.)²⁷

The Court will consider Scott's allegations as they pertain to three distinct phases in this case. They are: (1) the pretrial period that concluded the moment that the jury was sworn; (2) the trial period that began with the swearing of the jury and concluded at the end of the trial; and (3) the post-trial period. The...