United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court are Petitioner Akein Scott's
(“Petitioner”) Motion for post-conviction Relief
to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255, related responsive memoranda, and the
factual and legal record. For reasons that follow below,
IT IS ORDERED that the Motion § 2255
(Rec. Doc. 538) is DENIED.
AND PROCEDURAL HISTORY
and his brother Shawn Scott were arrested in connection with
a 2013 shooting that disrupted a Mother's Day second line
parade in New Orleans, Louisiana. Rec. Doc. 538 at 3. On Dec.
11, 2014, a federal grand jury returned a Third Superseding
Indictment charging Petitioner and five other defendants with
“RICO” conspiracy, violent crimes in aid of
racketeering, conspiracy to distribute heroin and crack
cocaine, and other offenses, in which Petitioner was charged
in fourteen counts. See Rec. Doc. 163. Petitioner
and his co-defendants were members of a RICO enterprise named
“FnD” who are linked to crimes, including
“conspiracy to distribute controlled substances,
distribution of controlled substances, [and] acts involving
murder” among others. Id. at 2.
ongoing discussions regarding a possible plea, the Government
informed Petitioner that it was investigating the murder of
James Gould. Rec. Doc. 538 at 3-4. On February 24, 2016 the
Government filed a sentencing memorandum, which asserted
among other allegations that Petitioner and certain
co-defendants murdered Gould as part of FnD conspiracy
(“Gould Murder”). Rec. Doc. 374. Petitioner
adamantly rejected his involvement and claimed that he had
never seen Gould before. Rec. Doc. 538 at 3; see also
Petitioner's Sentencing Memorandum at Rec. Doc. 393.
Petitioner states that although the investigation was
continuing the Government did not intend to pursue formal
charges regarding the Gould Murder at his sentencing.
However, the plea agreement included clear and express
language that the Court was not bound to any discussions
between the parties and could “consider any and all
relevant conduct that [Scott] was involved in during the
course of the conspiracy[.]” Rec. Doc. 273, pp. 1-4.
Petitioner expressly indicated that he understood these and
all terms of the agreement. Rearraignment Transcript Rec.
to plea agreement and factual basis documents, Petitioner
pleaded guilty to Counts 1-3 of conspiracy and Counts 7, 9,
11, 13, and 19 concerning five different shootings in aid of
those offenses. Rec. Docs. 270, 273, 274 and 391. Together,
the charges amounted to a mandatory minimum sentence of 20
years imprisonment and a maximum of life. Id. The
United States Probation Officer's presentence report
(PSR) revealed that Petitioner faced a total offense level of
45, wherein the Guideline Sentence is Life. Rec. Doc. 400.
Petitioner's trial attorney objected to the PSR,
including the offense level and related use of the Gould
murder. Counsel filed supporting memoranda for their
objections. See Rec. Docs. 336, 393, 400 (pp. 58-59), and
406. The Court overruled those objections after hearings and
sentenced Petitioner to life imprisonment plus 10 years. See
Evidentiary Hearing Transcript at Rec. Doc. 382; and
Sentencing Hearing Transcript at Rec. Doc. 461.
filed a timely notice of appeal and had three major points of
contention in his appellate briefs. Rec. Doc. 431. First,
Petitioner argued that the Government breached the plea
agreement by presenting the Gould Murder evidence. Second,
the Government allegedly disregarded the agreement and
presented the evidence, rendering Petitioner's plea not
knowing or voluntary. Lastly, Petitioner argued that his
counsel was ineffective in advising him to plead guilty. The
Fifth Circuit affirmed Petitioner's conviction and
sentence, rejecting his argument because he “received
the benefit of his bargain.” U.S. v. Aiken
Scott, No. 16-30300, 2017 WL 1958954 (5th
Cir. 05/12/2017) (“Fifth Cir. Op.”); EDLA Rec.
filed this § 2255 petition, contending the sentence
should be vacated due to ineffective counsel. Rec. Doc. 538
at 3. Petitioner has three basic arguments: (1) his counsel
was deficient for making him plead guilty, (2) his counsel
was deficient for not withdrawing his guilty plea, and (3)
her alleged deficiency caused prejudice. See Rec.
§ 2255 petition, a federal prisoner may move to vacate,
set aside or correct his sentence. 28 U.S.C. § 2255(a).
A petitioner may raise the following issues in his appeal:
“(1) the sentence was imposed in violation of the
Constitution, (2) the court was without jurisdiction, (3) the
sentence was in excess of the maximum authorized by law, (4)
or the sentence is otherwise subject to collateral
attack.” Id. When the petitioner is pro
se, the Court must construe his petition
“liberally.” United States v. Pineda,
988 F.2d 22, 23 (5th Cir. 1993). Furthermore, issues raised
and disposed of in a previous appeal from an original
judgment and conviction are not considered in § 2255
motions. United States v. Kalisk, 780 F.2d 506, 508
(5th Cir.), cert denied, 476 U.S. 1118
(1986); United States v. Troutman, 16 F.3d 1215 (5th
Cir. 1994). Therefore, the Court will only assess
Petitioner's ineffective assistance of counsel claims,
the only remaining claims post-appeal.
Court must assess whether Petitioner's counsel was
deficient under the Strickland standard. See
Strickland v. Washington, 466 U.S. 668 (1984). When
asserting deficient counsel, the burden of proof rests with
the petitioner. United States v. Chavez, 193 F.3d
375, 378 (5th Cir. 1999). Although, “[s]urmounting
Strickland‘s high bar is never an easy task.
Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
Ineffective counsel is defined by the two prong test:
“(1) whether counsel's representation fell below
the objective standard of reasonableness; and (2) whether
there is a reasonable probability that, if counsel had not
acted unprofessionally, the outcome of the proceeding would
have been different.” Strickland, 466 U.S. at
the Court will determine if Petitioner's attorney was
ineffective when she advised him to plead guilty. Rec. Doc.
538 at 6. At the time of his rearraignment, Petitioner
maintained that he fully understood the consequences of his
plea, including the admonition that the Court “could
consider relevant conduct in fashioning a fair and just
sentence.” Rec. Doc. 273 at 3-4; See also Rearraignment
Transcript Rec. Doc. 391 at 3-4; 10-13; 22-24; 32-42, 47-50.
In accordance with appellate precedent, this Court has
previously held that a § 2255 claim should be dismissed
if the Petitioner's allegations directly contradict with
his sworn testimony. United States v. Vinnett, Crim.
A. No. 13-125, 2016 WL 705205, at *4 (E.D. La. Feb. 22,
2016)(Lemelle, J). This is in accord with Fifth Circuit
precedent that affords “great weight” to the
defendants' sworn statements at the plea colloquy.
United States v. Cothran, 302 F.3d 279, 283
(5th Cir. 2002). Petitioner acknowledged under
oath as signing and understanding plea documents that
explained the terms of the agreement with the condition that
the Court has the ultimate discretion to determine an
appropriate sentence, regardless of what his attorney or
others might have said. Additionally, the record reflects
that Petitioner's attorney explained to him that the
Sentencing Guidelines are merely advisory and that the Court
may sentence him anywhere within the statutory range.
also argues that he received ineffective counsel because his
attorney unreasonably misrepresented his possible sentence.
Originally, counsel for Petitioner believed Petitioner had a
total offense level of 35 based on information available to
her. At that level, the guideline imprisonment range is
168-210 months. However, Petitioner would eventually learn
that the Court calculated a total offense level of 45,
resulting in a Guidelines Sentence of life imprisonment.
Petitioner contends that the advice of counsel to plead
guilty was constitutionally deficient because he relied on
the lower total offense level and alleged Government's
representations that it would not prosecute the Gould Murder.
arguments regarding his counsel in this fashion are
meritless. The record overwhelmingly indicates that
Petitioner was made aware that the plea agreement did not
ensure that he would be sentenced to twenty years
imprisonment. He repeated through sworn testimony and
responses to Court questioning that he understood the
repercussions of his guilty plea, including above noted
admonitions that the sentencing judge was not bound by
sentencing discussions between counsel and petitioner.
“Such solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 74 (1977). Moreover, an erroneous sentencing
estimate by counsel does not necessarily indicate ineffective