# Scott v. United States

> District Court, W.D. North Carolina · April 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10258292

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** April 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10258292

## How later opinions describe it (automated extraction)

- holding sufficiently close nexus between firearms and drugs existed to support § 924(c) conviction
- holding it was proper to dismiss § 2255 claims based on vague and conclusory allegations

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:21-cv-00661-RJC
(3:19-cr-00280-RJC-DSC-1)

CLEVEN SCOTT, )
)
Petitioner, )
)
vs. ) ORDER
)
UNITED STATES OF AMERICA, )
)
Respondent. )
___________________________________ )

THIS MATTER is before the Court on Petitioner’s Pro Se Motion to Vacate, Set Aside
or Correct Sentence under 28 U.S.C. § 2255. [CV Doc. 1].1
I. BACKGROUND
From March to May 2019, Petitioner Cleven Scott (“Petitioner”) sold cocaine and crack
cocaine to an undercover officer on five different occasions. [CR Doc. 23 at ¶¶ 13-17: Presentence
Investigation Report (PSR)]. The final of these five transactions occurred on May 7, 2019.
Petitioner agreed to sell the undercover officer nine ounces of crack cocaine for $10,000. [Id. at ¶
17]. When Petitioner did not arrive for the deal, the undercover officer called him. Petitioner
explained that he was waiting for his source. Petitioner called back later to tell the undercover
officer that he would not be able to cook the cocaine into crack in time for the deal. The officer
agreed to buy the powder cocaine instead and Petitioner drove to the agreed location with a

1 Citations to the record herein contain the relevant document number referenced preceded by either the
letters “CV,” denoting that the document is listed on the docket in the civil case file number 3:21-cv-00661-
RJC, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number
3:19-cr-00280-RJC-DSC-1.
passenger in his car. Petitioner gave the undercover officer 247.86 grams of cocaine and officers
arrested Petitioner. Petitioner was carrying two cell phones and the money the undercover officer
had given him. [Id.]. Officers found a loaded firearm in the center console of Petitioner’s car,
inside a Crown Royal bag. [Id. at ¶ 18]. Officers also found what appeared to be marijuana and
an additional 9.72 grams of cocaine in the car. [Id.]. Petitioner had two more loaded firearms at

his home, one under his pillow and another on a stool next to the closet in his bedroom. [Id. at ¶
19].
Petitioner waived his Miranda rights and told detectives about the firearms. [Id. at ¶ 20].
He admitted that he bought the firearm in his car off the street because it fit in his hand and he
needed it for protection during drug transactions. [Id.]. Petitioner also conceded that he knew he
was not supposed to have a firearm. [Id.].
On September 18, 2019, Petitioner was charged in a Bill of Indictment with three counts
of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) (Counts One, Three, and Five); two counts of possession with intent to distribute

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Counts Two and Four); one
count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count Six); and two counts of possession of a firearm by a convicted felon (Counts
Seven and Eight). [CR Doc. 1: Bill of Indictment]. Petitioner was arrested on October 4, 2019
and the Court appointed counsel for him at his initial appearance a few days later. [10/4/2019 &
10/7/2019 Docket Entries].
The parties reached a plea agreement pursuant to which Petitioner agreed to plead guilty
to Counts Two, Five, and Six and the Government agreed to dismiss Counts One, Three, Four,
Seven, and Eight. [CR Doc. 12 at ¶¶ 1-2: Plea Agreement]. Petitioner stipulated that there was a
factual basis for his guilty plea, that he had read it and understood it, and that the factual basis
could be used by the Court and the United States Probation Office to determine the applicable
advisory guideline range or the appropriate sentence under 18 U.S.C. § 3553(a). [Id. at ¶ 11; see
CR Doc. 14 at ¶ 31: Entry and Acceptance of Guilty Plea]. Petitioner also agreed that the facts set
forth in the factual basis were sufficient to establish all the elements of the crimes. [CR Doc. 13:

Factual Basis]. As to Count Six, the factual basis provided:
On May 7, 2019 in Mecklenburg County, within the Western
District of North Carolina, [Petitioner] knowingly and unlawfully
possessed a firearm, that being a Ruger, model EC9S, 9mm caliber
pistol, in furtherance of a drug trafficking crime, Possession with
Intent to Distribute a Controlled Substance (cocaine).

[Id. at 2].
On January 24, 2020, Petitioner pleaded guilty in accordance with the plea agreement. At
the plea hearing, represented by counsel, Petitioner testified that he understood that he was under
oath and required to give truthful answers to the questions asked by the Court. [CR Doc. 14 at ¶
1]. Petitioner testified that he had received a copy of the Indictment and that he had discussed it
with his attorney. [Id. at ¶ 8]. The Court reviewed the charges, including the minimum and
maximum penalties, and Petitioner testified that he understood them. [Id. at ¶ 9]. Petitioner
confirmed that he was, in fact, guilty of the charges to which he was pleading guilty. [Id. at ¶ 24].
The terms of the plea agreement were reviewed, and Petitioner testified that he understood
them. [Id. at ¶ 26]. Petitioner also testified that he had read the factual basis, understood it, and
agreed with it. [Id. at ¶ 31]. Petitioner testified that he was satisfied with the services of his lawyer
in this case. [Id. at ¶ 35]. Petitioner’s attorney then attested that she had reviewed all terms of the
plea agreement with Petitioner, and that she was satisfied that Petitioner understood them. [Id. at
¶ 39]. Thereafter, the Court found that Petitioner’s guilty plea was “knowingly and voluntarily
made” and “that [Petitioner] understands the charges, and the potential penalties and consequences
of his plea.” [Id. at p. 4]. The Magistrate Judge then accepted Petitioner’s guilty plea. [Id.].
Petitioner was sentenced to terms of imprisonment of 60 months on Counts Two and Five, to run
concurrently, and a term of 60 months on Count Six, to be served consecutively, for a total term
of 120 months.2 [CR Doc. 27 at 2: Judgment]. Petitioner appealed his conviction and sentence,

but his appeal was later dismissed for his failure to prosecute. [CR Docs. 29, 33-1].
Petitioner timely filed the instant motion to vacate under § 2255. [CV Doc. 1]. As grounds
for his § 2255 motion, Petitioner claims his attorney provided ineffective assistance of counsel
because she did not explain to Petitioner that he was not in possession of a firearm at his last drug
transaction and, had he known, he would not have pleaded guilty.3 [Id. at 4]. Petitioner does not
claim innocence or request a trial. Rather, he requests that the five-year consecutive sentence for
Count Six “be dropped.” [Id. at 12]. The Government, on this Court’s Order, timely responded
to Petitioner’s motion to vacate. [CV Doc. 4]. Petitioner did not reply.
This matter is now ripe for adjudication.

II. STANDARD OF REVIEW
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 arguments

2 The PSR prepared before sentencing noted that Petitioner would have qualified as an Armed Career
Criminal and been subject to a 15-year minimum term of imprisonment if he had been convicted on Counts
Seven and Eight. [CR Doc. 23 at ¶ 116].

3 Petitioner also claims that his attorney was ineffective for failing to file a notice of appeal. [CV Doc. 1 at
4]. Petitioner’s counsel did, however, timely file a notice of appeal. The Court, therefore, will deny and
dismiss this claim.
presented by Petitioner 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. DISCUSSION
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend.

VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient
performance by counsel and, second, that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is “a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010).
Furthermore, in considering the prejudice prong of the analysis, the Court “can only grant relief
under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.’”
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364,
369 (1993)). Under these circumstances, the petitioner “bears the burden of affirmatively proving

prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet
this burden, a “reviewing court need not even consider the performance prong.” United States v.
Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th
Cir. 2000).
To establish prejudice in the context of a guilty plea, a petitioner must show 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.” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (quoting Hill
v. Lockhart, 474 U.S. 52, 59 (1985)). In evaluating claims under § 2255, statements made by a
defendant under oath at the plea hearing carry a “strong presumption of verity” and present a
“formidable barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). “[C]ourts must be able to rely on the defendant’s statements made under oath during a
properly conducted Rule 11 plea colloquy.” United States v. Lemaster, 403 F.3d 216, 216, 221-
22 (4th Cir. 2005). Indeed, “in the absence of extraordinary circumstances, the truth of sworn
statements made during a Rule 11 colloquy is conclusively established, and a district court should

dismiss … any § 2255 motion that necessarily relies on allegations that contradict the sworn
statements.” Id. at 221-22.
When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings
conducted prior to entry of the plea.” United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir.
2010). Thus, a knowing and voluntary guilty plea “forecloses federal collateral review” of prior
constitutional deprivations, including allegations of ineffective assistance of counsel that do not
affect the voluntariness of the plea. See Fields v. Att’y Gen. of Md., 956 F.2d 1290, 1294-96 (4th
Cir. 1992); accord United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); Wilson v. United
States, 962 F.2d 996, 997 (11th Cir. 1992); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). A

guilty plea is valid when it “represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Burket v. Angelone, 208 F.3d 172, 190 (4th Cir. 2000)
(citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
Here, Petitioner claims that the Judge stated at sentencing that Petitioner “clearly … was
NOT in possession of a gun during [his] last drug transaction” and that he, the Petitioner, would
not have pleaded guilty had his attorney “explained Count 6 to [him].”4 [CV Doc. 4]. To begin,
these vague and conclusory assertions are insufficient to establish a claim of ineffective assistance

4 At sentencing, defense counsel noted that Petitioner left the firearm in his car while he conducted the drug
transaction, but also admitted that this was not a defense to the charge. [CR Doc. 35 at 5: Sentencing Tr.].
The Court did not comment on Petitioner’s possession of the firearm.
in the first instance and this claim is subject dismissal on this ground alone. See United States v.
Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013) (holding it was proper to dismiss § 2255 claims based
on vague and conclusory allegations).
Petitioner has also waived this claim of pre-plea ineffectiveness after having pleaded guilty
knowingly and voluntarily. See Fields, 956 F.2d at 1294-96. Furthermore, the alleged facts

underlying Petitioner’s claim on this ground directly contradict Petitioner’s sworn testimony at his
plea hearing. See Lemaster, 403 F.3d at 221. Petitioner represented under oath that he discussed
the Indictment with his attorney, that he understood the charges, and that he is guilty of the charges
to which he pleaded guilty. Petitioner testified that he agreed with the factual basis, which included
a factual basis for Count Six. Petitioner, absent extraordinary circumstances, remains bound by
those sworn statements. Id.
Regardless, Petitioner cannot show deficient performance. The facts, including
Petitioner’s own admission, show that he possessed the firearm in his car in furtherance of his drug
trafficking crime. After he was arrested, Petitioner admitted buying the subject firearm because

he needed it for protection during drug transactions and it was in his car when he arrived to sell
cocaine to the undercover officer. [CR Doc. 23 at ¶¶ 18, 20]. The firearm was loaded, and
Petitioner had more drugs in the car. [Id. at ¶ 18]. There was sufficient evidence to show
Petitioner’s possession of a firearm in furtherance of a drug trafficking offense. See United States
v. Moore, 769 F.3d 264, 269-70 (4th Cir. 2014) (holding sufficiently close nexus between firearms
and drugs existed to support § 924(c) conviction); United States v. Squirewell, 346 Fed. App’x
959, 961 (4th Cir. 2009) (holding evidence sufficient to support § 924(c) charge where a gun was
found next to a box containing drugs that was in defendant’s care the same date he admitted to
purchasing and selling drugs).
Finally, Petitioner has not and cannot shown prejudice. Petitioner does not seek to
withdraw his guilty plea and proceed to trial. Rather, he requests only that his five-year sentence
on Count Six be set aside. See Meyer, 506 F.3d at 369. Moreover, proceeding to trial would not
have been objectively reasonable given the substantial evidence against Petitioner and the fact that
he would have faced a mandatory minimum 15-year sentence as an Armed Career Criminal, five

years more than the sentence he received. See United States v. Fugit, 703 F.3d 248, 260 (4th Cir.
2012) (“The challenger’s subjective preferences, therefore, are not dispositive; what matters is
whether proceeding to trial would have been objectively reasonable in light of all of the facts.”).
In sum, because Petitioner cannot show deficient performance or prejudice, his ineffective
assistance claims will be dismissed. See Strickland, 466 U.S. at 687-88.
IV. CONCLUSION
For the foregoing reasons, the Court denies and dismisses Petitioner’s Section 2255
petition.
IT IS, THEREFORE, ORDERED that:

1. Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255 [Doc. 1] is DENIED and DISMISSED.
2. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338
(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is
denied on procedural grounds, a petitioner must establish both that the dispositive
procedural ruling is debatable and that the petition states a debatable claim of the
denial of a constitutional right).
IT IS SO ORDERED.
Signed: April 5, 2022

Robert J. Conrad, Jr. eed,
United States District Judge “ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10258292. Public record. Not legal advice.