United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
“Motion in Support of Writ of Audita Querela Pursuant
to 28 U.S.C. § 1651” [Doc. 1], in which he seeks
relief pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015). Also pending is Petitioner's
“Motion for Appointment of Counsel” [Doc. 2]. For
the reasons that follow, the Court finds that relief is
unavailable under § 1651, as Petitioner essentially
seeks to circumvent the rule against filing unauthorized
second or successive motions to vacate pursuant to 28 U.S.C.
§ 2255. Further, the Court finds that the circumstances
do not warrant the appointment of counsel for Petitioner.
January 12, 2001, Petitioner was found guilty after a jury
trial of conspiracy to possess with intent to distribute
cocaine in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A)(ii) and 851. [Crim. Case No. 1:00CR69
(“CR”), Doc. 80: Verdict]. Petitioner was
sentenced to a term of life imprisonment as a career
offender. [CR Doc. 111: Judgment; CR Doc. 189: PSR]. The
Fourth Circuit Court of Appeals affirmed the conviction and
sentence on July 12, 2002. United States v. Scott,
40 F. App'x 807 (4th Cir. 2002). The United States
Supreme Court denied certiorari on January 13, 2003.
Scott v. United States, 537 U.S. 1140 (2003).
filed a motion to vacate pursuant to 28 U.S.C. § 2255
[CR Doc. 135: Motion to Vacate], which the Court denied on
November 5, 2003, [CR Doc. 136: Order]. The Fourth Circuit
Court of Appeals dismissed the appeal and denied a
certificate of appealability on June 23, 2006, United
States v. Scott, 185 F. App'x 292 (4th Cir. 2006),
and the United States Supreme Court denied certiorari on June
4, 2007, Scott v. United States, 551 U.S. 1104
(2007), and rehearing on August 20, 2007, Scott v. United
States, 551 U.S. 1181 (2007).
January 26, 2008, Petitioner filed a petition purporting to
seek relief pursuant to 28 U.S.C. § 2254 in the Eastern
District of California. The petition was subsequently
transferred to this Court. [CR Doc. 161: Second Motion to
Vacate]. The Court denied this motion as an unauthorized
successive § 2255 motion to vacate and denied
reconsideration. [CR Doc. 164: Order; CR Doc. 166: Denying
Reconsideration]. The Fourth Circuit dismissed
Petitioner's appeal on October 5, 2009. United States
v. Scott, 346 F. App'x 975 (4th Cir. 2009).
then filed an application in the Fourth Circuit Court of
Appeals for authorization to file a second or successive
§ 2255 motion to vacate raising a claim under
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Court denied the motion on March 16, 2016, reasoning that
even if Johnson applied retroactively, Petitioner
would not be entitled to relief. [CR Doc. 190].
Petitioner returned to this Court and filed in the underlying
criminal case a motion to correct certain “factual
inaccuracies” in his Presentence Investigation Report
(“PSR”) pursuant to Rule 36 of the Federal Rules
of Criminal Procedure. [CR Doc. 192: Motion to Correct PSR].
Specifically, he argued that the PSR erroneously states that
(1) he was previously convicted of assault with a deadly
weapon and (2) he was once affiliated with a gang. He
contended that these errors adversely affects his security
classification and eligibility for certain programs while
incarcerated. The Court denied the motion for lack of
jurisdiction because Petitioner sought to substantively
challenge the PSR and the time to do so had long-since
expired, and because he failed to obtain permission from the
Fourth Circuit to file a second or successive § 2255
motion to vacate. [CR Doc. 193].
before the Court for review is Petitioner's “Motion
in Support of Writ of Audita Querela Pursuant to 28 U.S.C.
§ 1651, ” which was docketed on June 26, 2017. In
his motion, Petitioner argues that he is entitled to
resentencing without the career offender enhancement because
his two prior convictions under California law for assault
with force likely to produce great bodily harm are not
categorically crimes of violence pursuant to
Johnson, 135 S.Ct. at 2551.
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the 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(a).
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the Petitioner's motion can be resolved
without an evidentiary hearing based on the record and
governing case law. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
Motion for Writ ...