Scott v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DARREL A. SCOTT, )

)

Movant, )

)

vs. ) Case No: 4:18CV303 HEA

)

UNITED STATES OF AMERICA, )

)

Respondent.

OPINION, MEMORANDUM AND ORDER

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.

FACTUAL HISTORY

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.

PROCEDURAL HISTORY

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 testified

consistently 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.

CLAIMS FOR 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 trial

on 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.”

STANDARD FOR RELIEF UNDER 28 U.S.C. §2255

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 to

obtain 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)).

Right to Evidentiary Hearing

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.

Standard for Ineffective Assistance of Counsel

“The standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L.E.2d 674 (1984), provides the framework for evaluating

[Movant’s] ineffective-assistance-of-counsel claim.” Anderson v. United

States, 762 F.3d 787, 792 (8th Cir. 2014). [Movant] “must show that his

counsel’s performance was deficient and that [he] suffered prejudice as a

result” to prove a violation of his Sixth Amendment rights. Id.

“Deficient performance is that which falls below the range of competence

demanded of attorneys in criminal cases.” Bass v. United States, 655 F.3d

758, 760 (8th Cir. 2011) (internal quotation omitted). “Strickland sets a

‘high bar’ for unreasonable assistance.” Love, 949 F.3d at 410 (quoting Buck

v. Davis, 137 S. Ct. 759, 775 (2017)). Only a performance “outside the wide

range of reasonable professional assistance” is constitutionally deficient. Id.

(internal quotation omitted). “We make every effort to eliminate the

distorting effects of hindsight and consider performance from counsel’s

perspective at the time.” Id. (internal quotation omitted).

“Prejudice requires the movant to establish ‘a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’ ” Bass, 655 F.3d at 760 (quoting

Strickland, 446 U.S. at 694).

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 of

counsel 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 be met in order for an ineffective

assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,

753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires

a “showing that counsel made errors so serious that counsel was not functioning as

the counsel guaranteed the defendant by the Sixth Amendment”. Id. Review of

counsel’s performance by the court is highly deferential, “and the Court presumes

counsel’s conduct falls within the wide range of reasonable professional

assistance”. Id. The court does not second-guess trial strategy or rely on the

benefit of hindsight, id., and the attorney’s conduct must fall below an objective

standard of reasonableness to be found ineffective, United States v. Ledezma-

Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged

deficient performance) would have been rejected, counsel's performance is not

deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to

“eliminate the distorting effects of hindsight” by examining counsel’s performance

from counsel’s perspective at the time of the alleged error. Id.

The second part of the Strickland test requires that the movant show that he

was prejudiced by counsel’s error, and “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different”. Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at

694). A reasonable probability is a probability sufficient to undermine confidence

in the outcome. Strickland, 466 U.S. at 694. When determining if prejudice exists,

the court “must consider the totality of the evidence before the judge or jury”. Id. at

695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).

The first prong of the Strickland test, that of attorney competence, is applied

in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,

however, is different in the context of guilty pleas. Instead of merely showing that

the result would be different, the defendant who has pled guilty must establish that

“there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial”. Hill v. Lockhart, 474

U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.

Ground One

Movant claims that he received ineffective assistance of counsel because

“trial counsel was not properly prepared to argue that a victim’s identification of

him resulted from an unduly suggestive photographic line-up, which was the

product of a police officer who harbored a bias against [Movant] and unlawfully

targeted him because of previous encounters.” He continues that counsel

ineffectively failed to “employ the services of an expert witness, or make proper

legal arguments, in support of a motion to suppress.”

Movant’s claim is without merit. Counsel acted objectively reasonable in

challenging the constitutionality of the photographic lineup at every possible

opportunity. Counsel moved pretrial for the suppression of the identification and

cross-examined Respondent’s witness during the evidentiary hearing on the

suppression motion. Counsel also challenged the admissibility of the identification

of Movant in post-evidentiary hearing briefing, in objections to Judge Adelman’s

Report and Recommendation, in objections to this Court’s Opinion, Memorandum,

and Order adopting the Report and Recommendation, in objections to the

Presentence Investigation Report, and at sentencing. Counsel raised the issue on

appeal to the Eighth Circuit. See United States v. Scott, 831 F.3d 1027 (8th Cir.

2016).

Moreover, Movant merely claims in conclusory fashion that counsel was

unprepared for the evidentiary hearing. Mere conclusory allegations are

insufficient to support a claim for ineffective assistance of counsel. Bryson v.

United States, 268 F.3d 560, 562 (8th Cir. 2001); see also Estes v. United States,

883 F.2d 645, 647 (8th Cir. 1989) (conclusory allegation was insufficient to rebut

strong presumption of counsel’s competence). The court “requires evidence of

what [the] expert would have stated at trial in order to establish Strickland

prejudice.” Rodela-Aguilar v. United States, 596 F.3d 457, 462 (8th Cir. 2010)

(internal quotation and citation omitted). Movant fails to present any such

evidence.

Movant also fails to satisfy the prejudice prong as well. The Eighth Circuit

affirmed this Court’s order denying Scott’s motion to suppress the identification

evidence, holding:

Scott does not address the first step—whether the photographic lineup was

suggestive and unnecessary. Scott criticizes the reliability of the evidence,

arguing that Detective Mayer used a dated photograph that, combined with

the gap in time between the crime and the photographic lineup and the

choice of a photographic lineup rather than live lineup, undermined the

evidence’s reliability. But [Perry v. New Hampshire, 132 S.Ct. 716 (2012)]

requires that Scott first show that Detective Mayer used a procedure that was

both suggestive and unnecessary. Here, Detective Mayer did not employ

anything suggestive or unnecessary in the procedure. Detective Mayer used

the REJIS to generate the photographic lineup, sequestered the Smiths

during the identification process, and informed the Smiths that the individual

responsible for the carjacking may or may not be in the lineup. We conclude

that the identification evidence from the photographic lineup did not violate

Scott’s due process rights.

Scott, 831 F.3d at 1033. Ground one is denied.

Ground Two

For Ground Two, Movant states:

Over two-years expired between an alleged carjacking crime and the

victim’s identification of the petitioner as one of the participants. Common

sense dictates that such a lengthy period of time distorts one’s ability to

recall the details of another person’s facial and physical characteristics. The

reliability of any identification is further weakened when the victim is shown

a photograph rather than a “line-up” type interview. It takes more than

merely recognizing similarities from a photograph in order to make a proper

identification. One’s speech, gait, height and weight and age must be part of

the calculation as well.

He also indicates that this issue was not raised on appeal “due to ineffective

assistance of counsel.”

This claim is procedurally barred, since it was raised before and rejected by

the Eighth Circuit. See Scott, 831 F.3d at 1033. The Eighth Circuit found that it

need not address the reliability prong of the identification analysis, holding that the

identification procedures used were neither suggestive nor unnecessary. Scott, 831

F.3d at 1033; see Perry, 132 S.Ct. at 725-26 (holding that when determining

whether to suppress an eyewitness identification, a court should not consider the

reliability of eyewitness evidence, i.e., engage in part two of the test, unless the

defendant satisfies the requirement of part one by proving that the police employed

an unduly suggestive identification procedure). United States v. Wiley, 245 F.3d

750, 752 (8th Cir.2001); Houser, 508 F.2d at 514. Ground Two is denied.

Ground Three

Movant argues for his third ground:

A Bench trial was conducted on Counts One thru Five of the indictment. At

its conclusion, the court informed that it would inform the defendant when a

decision was made as to guilt or not guilty. However, the defendant was

never informed that he had been found guilty of the aforesaid counts, nor did

he appear in court, prior to sentencing, for an adjudication of guilt.

Consequently, the defendant without being adjudged guilty of the aforesaid

counts, and remains innocent of those crimes. Simply entering “Findings of

Fact and Conclusions of Law” in this context is not sufficient.

This claim is barred for failure to raise it on direct appeal.

A petitioner “cannot raise a non-constitutional or non-jurisdictional issue in

a § 2255 motion if the issue could have been raised on direct appeal but was not.”

Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Claims, including

those concerning constitutional and jurisdictional issues, unraised on direct appeal

cannot subsequently be raised in a § 2255 motion unless the petitioner establishes

“(1) cause for default and actual prejudice or (2) actual innocence.” United States

v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523

U.S. 614, 621-22 (1998)). Exceptions to this rule are recognized only upon

production of convincing new evidence of actual innocence and are available only

in the extraordinary case. United States v. Wiley, 245 F.3d 750, 752 (8th Cir.

2001).

Movant has failed to establish actual prejudice or actual innocence. Federal

Rule of Criminal Procedure 23(c) provides that in a case tried without a jury, upon

request of a party “before the finding of guilty or not guilty, the court must state its

specific findings of fact in open court or in a written decision or opinion.”

Fed.R.Crim.P. 23(c). The Court issued written Findings of Fact and Conclusions of

Law.

Ground Four

Movant claims this his attorney was ineffective in that she did not “properly

prepar[e]” her motion to suppress his statements to officers after being arrested. He

claims that the incriminating statements constituted “fruit of the poisonous tree”

because his arrest was “unlawful and not supported by a probable cause

determination by an impartial tribunal or magistrate.”

Movant has not established that counsel was ineffective under Strickland.

Counsel acted objectively reasonable in challenging the admissibility of his

incriminating statements made to law enforcement officers after he was arrested.

Defense counsel filed a Motion to Suppress Evidence and Statements, specifically

arguing that Movant’s statements should be suppressed because they were, among

other things, the product of an unlawful arrest. Defense counsel also cross-

examined Detective Mayer regarding Scott’s arrest and subsequent interview and

challenged the admissibility of the statements in her objections to Judge Adelman’s

Report and Recommendation.

Ground Five

Movant claims that he received ineffective assistance of counsel when

defense counsel advised him to reject the plea offer made by the United States and

proceed to trial on Counts One through Five of the indictment. Movant’s claims

are belied by the record.

THE COURT: Very well. Ms. Trog.

MS. TROG: That is a correct recitation of the facts, Your Honor, and

further, after we had the initial plea before you a couple months ago maybe now,

we had approached the Government—I had approached the Government to see if

we could essentially come to the same understanding, and Mr. Scott did not wish

to do that, and he wished to proceed to trial. And if I could have one more.

THE COURT: Yes.

MS. TROG: He wishes to move forward, Your Honor.

THE COURT: All right. Mr. Scott, if you would just stand up where you

are, you are still under oath. Did you hear everything that Ms. Fleming just said—

you are still under oath for our purposes. Did you hear everything that Ms. Fleming

said from the United States?

THE DEFENDANT: Yes.

THE COURT: Did any of that confuse you?

THE DEFENDANT: No.

THE COURT: All right. And you heard your attorney’s response to that?

THE DEFENDANT: Yes.

THE COURT: All right. With that as the backdrop, let me ask Ms. Fleming

this on behalf of the United States. Is it fair to say that whatever the negotiated plea

was is now off the table?

MS. FLEMING: Your Honor, the initial offer was that if the defendant

would plead to 15 years, that that would be the agreement; however, since that

time, the United States has no concern about the availability of its witnesses, and

that offer is off the table.

THE COURT: All right. So in short, all bets are off?

MS. FLEMING: Yes, Your Honor.

THE COURT: You understand that, Mr. Scott?

THE DEFENDANT: Yes.

THE COURT: All right. Any questions about any of that?

THE DEFENDANT: No.

Trial TR., pp. 12-14. Clearly, defense counsel communicated to Scott the terms of

the United States’ plea offer as she was required to do by law. See Frye, 132 S. Ct.

at 1408 (2012) (defense counsel has the duty to communicate formal offers from

the prosecution to accept a plea on terms and conditions that may be favorable to

the accused).

Movant claim that defense counsel provided constitutionally ineffective

assistance when she recommended that he reject the offer and proceed to trial.

Movant did not, in the Court’s colloquy contend counsel recommended anything,

and further that he understood the plea and that it was his decision to go to trial.

Further the record establishes that Movant’s attorney counseled him to

plead. In her affidavit, counsel avers that on February 27, 2015, she met with

Movant at the St. Louis Justice Center regarding entering a guilty plea or

proceeding to trial. See Government’s Exhibit 1, Affidavit of JoAnn Trog, ¶ 4. He

indicated to counsel that while he “believed he was guilty of the conspiracy to

possess and distribute heroin,” “he would never enter a voluntary plea of guilty to

the allegations regarding the two (2) carjackings.” Id. He believed that “no one

identified him as being a party of the first carjacking” and that “the Government’s

methodology in the preparation of a photo array with regard to the second

carjacking was improperly assembled.” Id., ¶ 5. Even after Ms. Trog explained the

statutory penalties for each of the charges to him, he remained “adamant’ that he

would “never” enter a voluntary plea to the carjacking charges. Id., ¶¶ 6-7.

Furthermore, on March 12, 2015, counsel for Respondent advises the Court

that at Ms. Trog’s request, she and Assistant United States Attorney (“AUSA”)

Patrick Judge met with Movant in the United States Marshal’s Office in the

Thomas F. Eagleton Courthouse. Id., ¶ 8. Ms. Trog was present. Id. During the

meeting, the undersigned and AUSA Judge personally extended the plea offer to

Movant, explaining to him the ramifications of being convicted of the carjacking

charges at trial. Id., ¶ 10. Both before and after the meeting, Ms. Trog “urged”

Scott to consider the plea offer extended by the United States. Id., ¶ 9.

Nevertheless, Movant insisted on proceeding to trial on the charges stemming from

the carjackings. Id., ¶ 11.

Finally, on April 14, 2015, Ms. Trog again met with Movant at the St. Louis

Justice Center. Id., ¶ 14. Ms. Trog again reviewed with Movant the proposed plea

agreement as it related to both the drug conspiracy charges and the carjackings. Id.,

¶ 15. With respect to the latter, Ms. Trog “entreated” Movant to reconsider going

to trial. Id., ¶ 15. He “refused to do anything but go to trial” on those counts. Id., ¶

15. Ground Five is denied.

Ground Six

In his sixth ground for relief, Movant claims it was error for the Court to

sentence him as a career offender in light of the United States Supreme Court

decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Mathis v. United

States, 136 S.Ct. 2243 (2016). Movant was not sentenced as a Career Offender

under the United States Sentencing Guidelines. Ground Six is denied.

Ground Seven

Movant argues that the Court must conduct a resentencing to make the

“required analysis” under Dean v. United States, 137 S.Ct. 1170 (2017). In Dean,

the Supreme Court held that a sentencing court may consider the mandatory

minimum for using a firearm in connection with a violent or drug trafficking crime

when calculating the sentence for the predicate offense. Id. at 1178. However,

Dean does not apply to a Section 2255 Motion because Dean cannot be applied

retroactively to cases on collateral review. See Reed v. United States, No. 1:17-CV-

181, 2018 WL 1064573, *2 (E.D. Mo. Feb. 23, 2018); Rhodes v. United States,

No. 4:15-CV-00432, 2018 WL 950223, *6 (E.D. Mo. Feb. 20, 2018); Simmons v.

Terris, No. 17–CV–11771, 2017 WL 3017536, at *2 (E.D. Mich. July 17, 2017).

See also In re Dockery, No. 17–50367, 2017 WL 3080914, at * 1 (5th Cir. July 20,

2017) (denying certification because the defendant had not “made a prima facie

showing that Dean announced a new rule of constitutional law that was made

retroactive to cases on collateral review”); Because Dean was decided after

Movant was sentenced, its holding does not apply retroactively to his Section 2255

Motion. Ground Seven is denied.

First Amended Motion

Ground Eight

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). Dimaya invalidated

as unconstitutionally vague 18 U.S.C. § 16(b)’s definition of crime of violence,

which includes a felony offense “that, by its nature, involves a substantial risk that

physical force against the person or property of another may be used in the course

of committing the offense.” Movant was convicted of carjackings, in violation of

18 U.S.C. §§ 2119 and 2.

These are crimes of violence under § 924(c)(3)(A), not § 924(c)(3)(B),

which is nearly identically worded to 16(b). Accordingly, even if the Court

extended Dimaya’s reasoning to § 924(c)(3)(B),Movant would not benefit.

In Dimaya, the Supreme Court held that the definition of a “crime of

violence” in 18 U.S.C. § 16(b) is unconstitutionally vague as incorporated into the

Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(F). 138 S. Ct. at

1212, 1223. The Court determined that “[t]wo features” on which it had previously

relied to invalidate the “residual clause” of the Armed Career Criminal Act of 1984

(ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), were likewise present in Section 16(b) as

incorporated into the INA. Dimaya, 138 S. Ct. at 1213 (quoting Johnson v. United

States, 135 S. Ct. 2551, 2557 (2015)). However, Dimaya did not address let alone

invalidate the force/elements clause definition of crime of violence set forth in 18

U.S.C. § 16(a) (“an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of another”).

Movant was charged with carjackings, in violation of 18 U.S.C. §§ 2119 and

2. Section 2119 punishes, “Whoever, with the intent to cause death or serious

bodily harm takes a motor vehicle that has been transported, shipped or received in

interstate or foreign commerce from the person or presence of another by force and

violence or by intimidation, or attempts to do so.” The federal crime of carjacking

is a crime of violence as defined in the force clause of § 924(c)(3)(A) because it

“has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.” United States v. Evans, 848 F.3d 262,

246 (4th Cir. 2017); see also United States v. Jones, 854 F.3d 737, 740-41 (5th Cir.

2017); United States v. Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017) (per

curiam); Ovalles v. United States, 861 F.3d 1257, 1269 (11th Cir. 2017).

Dimaya does not afford Movant any relief because his § 924(c) convictions

were based on crimes of violence categorized under the force/elements clause, not

the residual/risk clause. This ground for relief is denied.

Second Amended Motion

Ground Nine

In his Second Amendment, Movant argues that because of the First Step Act

(the “FSA”), he should not have received consecutive twenty-five year sentences

on Counts Four and Nine and, thus, is entitled to resentencing.

Before the FSA was enacted, Title 18, United States Code, Section

924(c)(1)(C) provided: “In the case of a second or subsequent conviction under

this subsection, the person shall—(i) be sentenced to a term of imprisonment of not

less than 25 years; and (ii) if the firearm involved is a machinegun or destructive

device, or is equipped with a firearm silencer or firearm muffler, be sentenced to

imprisonment for life.” Section 403(a) of the FSA amends this language by

deleting the phrase “second or subsequent conviction under this subsection” and

replacing it with the italicized language as follows: “In the case of a violation of

this subsection that occurs after a prior conviction under this subsection has

become final, the person shall—(i) be sentenced to a term of imprisonment of not

less than 25 years; and (ii) if the firearm involved is a machinegun or destructive

device, or is equipped with a firearm silencer or firearm muffler, be sentenced to

imprisonment for life.”

On December 21, 2018, the President signed the First Step Act of 2018. Pub.

L. 115-391, Tit. I, to be codified at 18 U.S.C. § 3631, et seq. Section 403(b) of the

Act provides that the amendments concerning Section 924(c)’s penalty provisions

“apply to any offense that was committed before the date of enactment of this Act,

if a sentence for the offense has not been imposed as of such date of enactment.”

The FSA amendments to the Section 924(c) penalty provisions does not

affect Movant since he was sentenced before December 20, 2018. See, e.g., In re

Green, 2019 U.S. App. LEXIS 7268 (11th Cir. Mar. 12, 2019) (denying motion to

file successive 2255 petition); United States v. Rondon, 2019 WL 1060813, at *2

(M.D. Fla. Mar. 6, 2019); Willingham v. United States, 2019 U.S. Dist. LEXIS

75293, at *3 (S.D. Fla. May 2, 2019); Cheshier v. United States, 2019 WL

2041283, at *4 (E.D. Ky. May 8, 2019) (denying 2241 motion); Chen Xiang v.

United States, 2019 U.S. Dist. LEXIS 64330, at *5 (S.D.N.Y. Apr. 11, 2019);

United States v. Smedley, 2019 WL 315181, at *2 (S.D. Ohio Jan. 24, 2019);

Brown v. Antonelli, 2019 WL 2358977 (D.S.C. June 4, 2019); Labarge v. Breckon,

2019 U.S. Dist. LEXIS 82859 (W.D. Va. May 16, 2019). This ground for relief is

denied.

Ground Ten

In his final claim for post-conviction relief, Movant states that he was

“subjected to the same type of wrong information concerning his sentencing

exposure.” Movant’s claim is as meritless. The record refutes Movant’s claim.

Movant does not allege how, when, or by whom he was misinformed of his

potential sentencing exposure upon conviction. As discussed, supra, on February

27, 2015, Movant’s counsel met with him at the St. Louis Justice Center regarding

entering a guilty plea or proceeding to trial. Government’s Exhibit 1, Affidavit of

JoAnn Trog, ¶ 4. Movant indicated to Ms. Trog that while he “believed he was

guilty of the conspiracy to possess and distribute heroin,” “he would never enter a

voluntary plea of guilty to the allegations regarding the two (2) carjackings.” Id.

He believed that “no one identified him as being a party of the first carjacking” and

that “the Government’s methodology in the preparation of a photo array with

regard to the second carjacking was improperly assembled.” Id., ¶ 5. Even after

Ms. Trog explained the statutory penalties for each of the charges to Movant, he

remained “adamant’ that he would “never” enter a voluntary plea to the carjacking

charges. Id., ¶¶ 6-7.

On March 12, 2015, at Ms. Trog’s request, Respondent’s counsel and

Assistant United States Attorney (“AUSA”) Patrick Judge met with Scott in the

United States Marshal’s Office in the Thomas F. Eagleton Courthouse. Id., ¶ 8. Ms.

Trog was present. Id. During the meeting, counsel and AUSA Judge personally

extended the plea offer to Movant, explaining to him the ramifications of being

convicted of the carjacking charges at trial. Id., ¶ 10. Both before and after the

meeting, Ms. Trog “urged” him to consider the plea offer extended by the United

States. Id., ¶ 9. Nevertheless, he insisted on proceeding to trial on the charges

stemming from the carjackings. Id., ¶ 11.

As a result, Scott cannot now demonstrate either constitutionally deficient

performance or prejudice. Therefore, Movant’s claim should be denied.

CONCLUSION

Based upon the foregoing analysis, Movant has failed to establish he is

entitled to a hearing and has failed to present any basis upon which the Court may

grant relief. Movant’s Motion to Set Aside or Correct Sentence pursuant to 28

U.S.C. § 2255 and its amendments are therefore denied.

CERTIFICATE OF APPEALABILITY

The federal statute governing certificates of appealability provides that “[a]

certificate of appealability may issue .. . only if the applicant has made a

substantial showing of the denial of a constitutional night.” 28 U.S.C. § 2253(c)(2).

A substantial showing of the denial of a constitutional right requires that “issues

are debatable among reasonable jurists, a court could resolve the issues differently,

or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th

Cir. 1997). Based on the record, and the law as discussed herein, the Court finds

that Movant has not made a substantial showing of the denial of a constitutional

right.

Accordingly,

IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct

Sentence, and its amendments are DENIED.

IT IS FURTHER ORDERED that this Court will not issue a Certificate of

Appealability as Movant has not made a substantial showing of the denial of a

federal constitutional right.

A separate judgment is entered this same date.

Dated this 21* day of July, 2020.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

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