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United States v. Scott

United States District Court, E.D. Louisiana

July 24, 2018


         SECTION “B” (5)


         Before 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.


         Petitioner 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.

         During 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. Doc. 391.

         Pursuant 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.

         Petitioner 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. Doc. 520-1.

         Petitioner 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. Doc. 538.


         In a § 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.

         The 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 687.

         First, 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.

         Petitioner 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.

         Petitioner's 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 ...

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