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Scott v. United States

United States District Court, W.D. North Carolina, Asheville Division

November 6, 2017

AMOS JUNIOR SCOTT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger United States District Judge

         THIS 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.

         I. PROCEDURAL HISTORY

         On 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).

         Petitioner 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).

         On 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).

         Petitioner 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].

         Next, 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].

         Presently 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.

         II. STANDARD OF REVIEW

         A 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).

         Rule 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).

         III. ...


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