Scott v. United States
| Decision Date | 21 July 2020 |
| Docket Number | Case No: 4:18CV303 HEA |
| Parties | DARREL A. SCOTT, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The Court has granted Movant's Motions to Amend twice. The third Motion to amend has been denied. The United States of America has responded to the motion and the amendments, pursuant to the Court's Show Cause Order. For the reasons set forth below, the Motion to Vacate is denied.
The factual history of this matter is set out by respondent in its responses, which was loosely taken from the rendition of the facts by the Eighth Circuit Court of Appeals in the direct appeal. That factual background is incorporated herein.
Movant was indicted by a federal grand jury in a nine-count superseding indictment against on April 1, 2015. The indictment charged Movant with two counts of carjacking in violation of 18 U.S.C. § 2119 and 2 (Counts One and Three); two counts of brandishing a firearm in furtherance of the carjackings in violation of 18 U.S.C. § 924(c) (Counts Two and Four); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Five). With respect to the subsequent ATF investigation, the indictment charged Movant with one count of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1) (Count Six); two counts of distributing heroin in violation of 21 U.S.C. § 841(b)(1)(C) (Counts Seven and Eight); and one count of possessing a firearm in furtherance of his distribution of heroin in violation of 18 U.S.C. § 924(c) (Count Nine). The ATF investigation occurred approximately one year after the Davis and Smith carjackings and involved undercover purchases of heroin and firearms from Scott by an undercover ATF Special Agent.
On April 16, 2015, Movant pleaded guilty to Counts Six, Seven, Eight, and Nine of the indictment pursuant to a Guilty Plea Agreement. On June 1, 2015, Movant proceeded to a bench trial on Counts One through Five.
Following opening statements, SLMPD Officers Ishmael Tyson, Thomas Mayer, and Thomas Burgoon testified for Respondent. Victims Garrett Davis and William Smith also testified for Respondent. Respondent's witnesses testifiedconsistently to the facts as set forth. The parties stipulated that prior to August 27, 2011, Movant had been convicted of one or more crimes punishable by imprisonment for more than one year under the laws of the State of Missouri. Respondent also introduced the parties' Guilty Plea Agreement and testimony of the undercover ATF Special Agent pursuant to Federal Rule of Criminal Procedure 404(b).
On June 5, 2015, the Court rendered its decision finding Movant guilty on all counts. At Movant's request, the Court issued an Opinion, Memorandum of Law, Findings of Fact, and Conclusions of Law.
The United States Probation Office issued a Presentence Investigation Report ("PSR) pursuant to the Court's Order. Using the grouping rules of United States Sentencing Guidelines Section 3D1.2, the PSR concluded that Movant's Total Offense Level for Counts One, Three, and Five through Eight was 23. Movant was assessed 10 criminal history points, which resulted in a Criminal History Category of V. This resulted in an applicable guideline range of 84 to 105 months. In addition, Counts Two, Four, and Nine required consecutive sentences of seven years, twenty-five years, and twenty-five years, respectively, to the applicable guideline range pursuant to 18 U.S.C. § 924(c).
On October 14, 2015, the Court sentenced Movant to a total term of imprisonment of 768 months, to be followed by a five-year term of supervised release.
Movant appealed his conviction and sentence to the Eighth Circuit Court of Appeals. On August 5, 2016, the Eighth Circuit issued its opinion and judgment, affirming the decision of this Court. United States v. Scott, 831 F.3d 1027 (8th Cir. 2016). Movant filed a motion for rehearing en banc. That motion was denied on September 23, 2016. Movant's petition for writ of certiorari was denied on February 21, 2017. Scott v. United States, 137 S.Ct. 1111 (2017). He then filed his motion for post-conviction relief.
In his initial Motion, Movant set out seven grounds for relief: (1) ineffective assistance of counsel because his counsel did not employ an expert witness or make proper legal arguments in support of his motion to suppress his identification; (2) Movant was prosecuted due to a vindictive police officer who knew the photographic lineup was false; (3) Movant remains innocent of the crimes because he never appeared in court for an adjudication of guilt; (4) ineffective assistance of counsel because counsel did not properly prepare the motion to suppress his statements to officers; (5) ineffective assistance of counsel because counsel advised him to reject Respondent's plea offer and proceed to trialon Counts One through Five; (6) Movant should not have been sentenced as a career offender; and (7) the Court should conduct a resentencing to take into consideration the mandatory minimum sentences required by the Section 924(c) counts when imposing sentences on the remaining counts.
In his first amendment Movant claims that the Supreme Court's decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), establishes that he is "actually innocent" of the counts charging him with 18 U.S.C. §924(c).
In his second amendment, Movant argues he is entitled to resentencing under the First Step Act because, after being convicted on three counts of violating 18 U.S.C. § 924(c), the Court imposed the then-mandatory consecutive twenty-five year sentence on two of the three Section 924(c) convictions. Movant also alleges he received ineffective assistance of counsel because defense counsel misinformed him of his "sentencing exposure."
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on the ground "that the sentence was imposed in violation of the Constitution or 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. In order toobtain relief under § 2255, the movant must allege a violation constituting "'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "'[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255). Thus, a movant is entitled to an evidentiary hearing "'when the facts alleged, if true, would entitle [the movant] to relief.'" Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim "without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant's claims can be conclusively determined based upon the parties' filings and the records of the case, no evidentiary hearing will be necessary.
Damon O'Neil Petitioner - Appellant v. United States of Am. Respondent - Appellee, No. 19-1422, 2020 WL 4045284, at *3-5 (8th Cir. July 20, 2020).
It is well-established that a petitioner's ineffective assistance of counsel claim is properly raised under 28 U.S.C. ' 2255 rather than on direct appeal. United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective assistance ofcounsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003).
Both parts of the Strickland test must...
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