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Scott v. Entzel

United States District Court, N.D. West Virginia

April 17, 2018

TRUMAN SCOTT, Petitioner,
v.
WARDEN ENTZEL, Respondent.

          Bailey Judge

          REPORT AND RECOMMENDATION I. BACKGROUND

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE

         On February 15, 2018, Truman Scott, (“Petitioner”) filed, a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 1. On February 28, 2018, he paid the $5.00 filing fee. Petitioner is a federal inmate housed at FCI Hazelton and is challenging the validity of his conviction and sentence imposed by the United States District Court for the Eastern District of North Carolina. This matter is now pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2.

         II. FACTS [1]

         On February 1, 1999, a jury found Petitioner guilty of a six-count indictment that charged him and two others with: Count One, conspiracy to distribute narcotics in violation of 21 U.S.C. § 846; Counts Two, Three and Four, interference with commerce by threat or violence in violation of 18 U.S.C. § 1951; and Counts Five and Six, violent crime/drugs, machine gun in violation of 18 U.S.C. § 924(c). ECF 9-1 at 4, 17. On April 19, 1999, Petitioner was sentenced on Count 1 to 405 months imprisonment; on Counts 2, 3 and 4 to 240 months imprisonment to run concurrently with the sentence in Count 1; on Count 5 to 120 months imprisonment to be served consecutive to the sentences on Counts 1-4; and on Count 6 to 240 month imprisonment to be served consecutive to the sentences in Counts 1-5.[2] Id. at 19.

         Petitioner appealed his convictions to the United States Court of Appeals for the Fourth Circuit which affirmed his convictions on all counts on March 14, 2000. Id. at 21. Petitioner filed a petition for writ of certiorari with the United States Supreme Court which was denied on November 27, 2000.[3]

         Petitioner filed a writ of error coram nobis which was denied by the Fourth Circuit on September 25, 2000. Id. at 23. On November 21, 2001, Petitioner filed a Motion to Vacate Under 28 U.S.C. § 2255 which was denied on August 28, 2003. Id. at 26. Petitioner appealed this denial on September 22, 2003. Id. The Fourth Circuit dismissed the appeal on December 30, 2003. Id. at 27. The petition for rehearing and for rehearing en banc was denied on March 30, 2004. Id. Petitioner filed a motion for relief from final judgment under Fed.R.Civ.P. 60(b) on January 9, 2007, which was denied on January 25, 2007. Id. at 29. Petitioner appealed on February 8, 2007. The appeal was dismissed on April 19, 2007. Id. at 30. Petitioner filed a motion to discontinue sentence on August 16, 2010, which the Court construed as a motion to vacate under 28 U.S.C. § 2255 and denied January 25, 2011. Id. at 33. A Certificate of Appealability was denied on August 2, 2011. Id. at 35. A motion to reconsider was denied on August 19, 2011. Id. Petitioner appealed on September 20, 2011, and the appeal was dismissed February 3, 2012. Id. at 36. Petitioner then filed another motion to vacate under 28 U.S.C. § 2255 on September 24, 2012 which was dismissed on September 27, 2012.[4] Id. Petitioner filed a Motion for Reduction of Sentence - crack cocaine offense which was denied on July 11, 2014. Id. at 39.

         III. Pleadings

         In his pending Petition for Relief Under 28 U.S.C. 2241, Petitioner raises three grounds for relief. First, he alleges that the district court lacked subject matter jurisdiction because the grand jury failed to present a valid indictment, and as a result, the court was without authority to impose punishment. Petitioner elaborates by noting that the indictment was either never issued or it was fatally flawed, and his attempts to obtain a copy of the indictment were unsuccessful, and he was told that there was not one of record. Second, Petitioner alleges that he is actually innocent. In support of this allegation, Petitioner maintains that he can demonstrate that he was actually innocent based on the fact that evidence was fabricated and testimony by the government agents was false. Petitioner elaborated that “operation tarnished badge” resulted in the arrest and conviction of officers key to the case based on a corruption conspiracy as he alleged at trial. Finally, Petitioner alleges that his punishment was increased through the unconstitutional use of acquitted, discharged or dismissed cause. In support of this allegation, Petitioner alleges that the recent decision in Nelson v. Colorado, 137 S.Ct. 1249 (2017), prevents courts from making an end run around the constitution and from eviscerating the presumption of innocence by using uncharged, acquitted and dismissed conduct to justify an increased sentence. For relief, he seeks an order vacating his conviction or sentence and an immediate release from confinement.

         IV. STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and this court's local rules, the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court. This court is charged with screening Petitioner's case to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2014); see also Rule 1(b) (a district court may apply these rules to a habeas corpus petition not filed pursuant to §2254). As a pro se litigant, Petitioner's pleadings are accorded liberal construction and held to less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the petition in this case is subject to summary dismissal. The requirements of liberal construction do not mean that the Court can ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990). As discussed more fully below, Petitioner clearly is not entitled to relief under 28 U.S.C. 2241, and therefore, no response has been required of Respondent.

         V. ANALYSIS

         All of Petitioner's claims challenge the validity of his conviction and sentence, and not the manner in which his sentence is being executed. Motions under 28 U.S.C. § 2255 are the primary remedy for testing the validity of federal judgments and must be filed in the court of conviction, which, in this case, is the United States District Court for the Eastern District of North Carolina. While, normally, a section 2255 motion filed in a court other than the sentencing court should be transferred to the sentencing court, because Petitioner already unsuccessfully filed a section 2255 motion in the Eastern District of North Carolina, and, apparently, has not received authorization from the United States Court of Appeals for Fourth Circuit to file a second or successive 2255 motion, to the extent that the instant petition may be construed as a section 2255 motion, it would be futile to transfer it to the Eastern District of North Carolina because it would be procedurally barred.

         28 U.S.C. § 2241 is typically used to address matters concerning the execution of a federal sentence, and is not an additional, alternative or supplemental remedy to that provided in section 2255, unless the petitioner can show that the remedy under section 2255 is inadequate or ineffective to test the legality of the Petitioner's detention. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (“[W]hen § 2255 proves 'inadequate or ineffective to test the legality of . . . detention, ' a federal prisoner may seek a writ of habeas ...


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