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Scott v. United States

United States District Court, E.D. Tennessee, Greeneville

October 22, 2019

ISADORE SCOTT, Petitioner,


          Leon Jordan United States District Judge.

         Isadore Scott (“Petitioner), a federal prisoner, has moved the Court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Doc. 1].[1] The United States has filed a response in opposition to Petitioner's motion [Doc. 3]. Petitioner did not reply to the response and the time for doing so has now passed [Doc. 6, Order requiring that any reply be filed within 30 days of the response]. In its response, the United States asserts that the motion is untimely and, thus, subject to dismissal based on the time-bar in § 2255(f), and alternatively, that Petitioner had waived his right to file the § 2255 motion and that the claims raised therein have been procedurally defaulted and also are meritless. For the reasons which follow, the Court finds that the § 2255 motion is untimely and will dismiss it accordingly.


         On May 11, 2010, a federal grand jury issued a four-count indictment charging Petitioner with distributing a mixture or substance containing a detectable amount of cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Counts 1-3), and with possession with the intent to distribute 5 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count 4) [Doc.1, Case No. 2:10-CR-57]. The government filed a notice under 21 U.S.C. § 851 to establish that Petitioner had three prior felony drug convictions the Washington County, Tennessee Criminal Court-one for the sale of cocaine and two for possession with the intent to sell or deliver cocaine [Doc. 10, Case No. 2:10-CR-57].

         In mid-October of 2010, Petitioner entered into a plea agreement with the government in which he agreed to plead guilty to Count 3 of the indictment [Doc. 22, Case No. 2:10-CR-57]. The plea agreement provided that, in exchange for his guilty plea, Petitioner waived his right to file a direct appeal, with two exceptions, and his right to file a § 2255 motion or a collateral attack on his conviction or sentence, excluding claims of prosecutorial misconduct or ineffective assistance of counsel [Id. at ¶ 10(a) and (b)]. The Court draws the facts from those to which Petitioner stipulated, as contained in the factual basis in the plea agreement [Id. at ¶ 4].

         On September 22, 2008, agents with the First Judicial District Drug Task Force met with a confidential informant (CI), gave him $100 in marked currency, and equipped him with an electronic transmitting device. The CI then made a recorded phone call to Petitioner to arrange a crack cocaine purchase. That evening, the CI met with Petitioner at a Johnson City service station, gave him the marked money, and in exchange received drugs in a mixture later determined to contain .2 grams of crack cocaine. On September 9th and 16th of 2009, the same series of events occurred on each of those days. The CI, fitted with an electronic transmitting device and carrying $100 in marked currency given to him by the agents, met with Petitioner at two different locations in Johnson City and exchanged the marked money for drugs, which later tests revealed to contain .4 grams of crack cocaine and .5 grams of crack cocaine respectively.

         On January 6, 2010, officers executed a search warrant for a Johnson City apartment where Petitioner was known to stay occasionally. During the execution of the search warrant, officers found $500 in the top drawer of a chest of drawers and 17.1 grams of an off-white, rocklike substance that thereafter was tested and determined to contain 13.3 grams of crack. Petitioner was arrested and eventually charged for criminal violations stemming from the search of the residence.

         On October 28, 2010, some nine days after entry of his plea agreement, Petitioner pled guilty to the crack-distribution charge in Count 3 in the indictment [Doc. 24, Case. No. 2:10-CR-57]. Thereafter, the United States Probation Office, using the 2010 version of the United States Sentencing Guidelines Manual, issued a Presentence Investigation Report (PSR) to assist the Court in sentencing Petitioner, [PSR (sealed), Case No. 2:10-CR-57].

         Using United States Sentencing Guideline (“USSG”) § 2D1.1 for § 841 offenses involving at least 11.2 grams but less than 16.8 grams of cocaine base, the probation officer who prepared the PSR determined that Petitioner's base offense level was 20 [Id. at ¶ 18]. Based on Petitioner's two prior felony convictions for a controlled substance offense, specifically his 2009 convictions for two counts of possession of a controlled substance for resale/delivery, the probation officer deemed him to be a career offender under USSG § 4B1.1 [Id. at ¶¶ 24, 36, and 41]. Because of the career offender designation, Petitioner's offense level was 34 under USSG § 4B1.1(b)(B), rather than the lower level of 20 previously calculated [Id. at ¶ 24]. A one- level and a two-level reduction for acceptance of responsibility yielded a total offense level of 31 which, along with a criminal history category of VI (as required by his career offender designation), resulted in an advisory Guidelines range of 188 months to 235 months [Id., ¶¶ 25-26, 45, and 61]. The parties did not object to the PSR [Doc. 25, Case No. 2:10-CR-57], and the case proceeded to sentencing.

         By means of a judgment entered on March 11, 2011, Petitioner was convicted of the cocaine-distribution offense and received a 170-month sentence of imprisonment as a career offender, to be followed by six years of supervised release [Doc. 28, Case No. 2:10-CR-57]. The Court dismissed the remaining counts upon motion of the government [Id.]. In keeping with the appeal waiver in the plea agreement, Petitioner did not file a direct appeal.

         Petitioner constructively filed his pro se § 2255 motion to vacate and supporting memorandum of law on June 15, 2017, the date stamped by the prison mailroom on the envelope containing those documents to show that it was processed on that date. See Houston v. Lack, 487 U.S. 266 (1988) (deeming a prisoner's filing of court paperwork to be the date he hands it over to the prison authorities for mailing); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999) (applying Houston's “prison mailbox rule” to § 2255 motion). The motion challenges Petitioner's career offender enhancement to his 2011 sentence and cites, as authority, Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016) [Docs. 1-2]. Petitioner reasons that because Descamps is retroactive and because he filed this motion to vacate within one year of Mathis, his § 2255 motion is timely [Doc. 2 at 4].


         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013) (applying Brecht test to § 2255 motion).

         To warrant relief for a non-constitutional error, a petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error that violated due process. Reed v. Farley, 512 U.S. 339, 354 (1994); Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000); Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999) (observing that a sentencing guidelines error “does not warrant collateral relief under § 2255 absent a complete miscarriage of justice”). Also, a petitioner “must clear a significantly higher hurdle than would exist on direct appeal” to secure collateral relief. United States v. Frady, 456 U.S. 152, 166 (1982); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 166). The Supreme Court has described the ยง 2255 ...

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