Scott v. Werlich

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 4/5/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HAGI SCOTT,
#38055-044,
Petitioner,
vs.
T. WERLICH,
Respondent.

Case No. 17-cv-128-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Hagi Scott is currently incarcerated in the Federal Correctional
Institution located in Greenville, Illinois (“FCI-Greenville”). Scott filed a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, in order to challenge his
conviction and sentence in United States v. Scott, Case No. 10-cr-496-JCH-TCM
(E.D. Mo. 2010) (“criminal case”).
This matter is now before the Court for preliminary review of the habeas
petition. Rule 4 of the Federal Rules Governing Section 2254 Cases in United
States District Courts provides that upon preliminary consideration by the district
judge, “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the petitioner to
be notified.” Rule 1(b) of those Rules gives this Court the authority to apply the
rules to other habeas corpus cases.
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I.

Background

On September 23, 2010, Scott was charged with knowingly or intentionally
distributing a mixture or substance containing heroin that resulted in the death of
another in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C) (Count 1), knowingly or
intentionally distributing a mixture or substance containing heroin in violation of
21 U.S.C. § 841(a) (Count 2), and knowingly or intentionally distributing a
mixture or substance containing cocaine base (crack cocaine) in violation of
21 U.S.C. § 841(a) (Count 3). 1 (Doc. 1-1, p. 2). On January 19, 2011, Scott
entered into a written plea agreement in which he agreed to plead guilty to Count
1. (Doc. 28, criminal case; Doc. 1-2, pp. 4-14). In exchange, the government
agreed to dismiss the remaining counts of the indictment at the time of
sentencing. Id. On April 21, 2011, Scott received a sentence of 240 months and
36 months of supervised release following his entry of a guilty plea as to Count 1.
(Doc. 39, criminal case). The government dismissed all other counts against him.

Id. Judgment was entered the same day. Id. Scott did not file a direct appeal.
On September 2, 2014, Scott filed a Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255. Scott v. United States, Case No. 14-cv1512-JCH (E.D. Mo. 2014) (“§ 2255 Motion”). (Doc. 1-1, p. 2). He challenged his
conviction and sentence based on the United States Supreme Court’s decision in

1

To determine Scott’s criminal and litigation history, the Court reviewed the Public
Access to Court Electronic Records (“PACER”) website (www.pacer.gov). See Bova v. U.S.
Bank, N.A., 446 F. Supp. 2d 926, 930 n. 2 (S.D. Ill. 2006) (a court may judicially notice
public records available on government websites) (collecting cases). Court documents
are, of course, public records of which the Court can take judicial notice. See Henson v.
CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).

2

Burrage v. United States, -- U.S. --, 134 S. Ct. 881, 887 (2014).

At issue in

Burrage was whether a defendant may be sentenced under the enhanced penalty
provision in § 841(b)(1)(C), which results in the imposition of a 20-year
mandatory minimum sentence when death “results from” the use of the unlawfully
distributed drug, if the use of the drug “contributes to, but is not a but-for cause
of, the victim’s death.” Burrage, 134 S. Ct. at 885. The Supreme Court held that
“but for” causation is required. Id. at 892. The “death results” enhancement has
two elements: (1) knowing or intentional distribution of the controlled substance
under § 841(a)(1); and (2) death resulting from the use of the drug under
§ 841(b)(1)(C). Id. at 887. Scott argued that the “death results” enhancement no
longer applied to him under Burrage. (Doc. 1, p. 4).
The United States District Court for the Eastern District of Missouri denied
the § 2255 Motion on May 23, 2016. Id. The District Court reasoned that Scott
waived the right to bring a collateral attack in his written plea agreement. 2 That
aside, even if Burrage announced a new rule of law made retroactively applicable
to cases on collateral review, Scott’s challenge also lacked merit. (Doc. 1-1, p. 2).
The District Court denied the § 2255 Motion and declined to issue a certificate of
appealability.
2

While his initial § 2255 Motion was pending, Scott attempted to bring a second § 2255
Motion to challenge the validity of his written plea agreement, to assert a claim of
prosecutorial misconduct, and to bring a claim based on the ineffective assistance of his
counsel. Scott v. United States, App. No. 15-1687 (8th Cir. 2015). He withdrew the
Application for Permission to File a Successive Habeas Petition after deciding to
incorporate the challenge into his pending § 2255 Motion. The District Court ultimately
declined to address Scott’s challenges after finding that they were untimely. Scott v.
United States, Case No. 14-cv-1512-JCH (E.D. Mo.) (Doc. 10, pp. 5-7 n. 1) (finding that
Petitioner is barred from raising his claims for the first time in a reply brief and his
claims are also time-barred).

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Scott nevertheless filed an application for a certificate of appealability with
the Eighth Circuit Court of Appeals. See Scott v. United States, App. No. 16-3051
(8th Cir. 2016).

The Eighth Circuit denied his application and dismissed the

appeal on January 18, 2017. (Doc. 1, p. 4). The instant habeas petition followed.
(Doc. 1, 1-1).
II.

Habeas Petition

Scott now challenges his conviction and sentence under the penalty
enhancement provision, referred to herein as the “death results” enhancement, of
the Controlled Substances Act.

(Doc. 1, pp. 4, 6).

The “death results”

enhancement is applicable where death or serious bodily injury results from the
use of a distributed substance. See Burrage v. United States, -- U.S. --, 134 S. Ct.
881 (Jan, 27, 2014). Scott contends that Burrage requires the government to
prove beyond a reasonable doubt that his “knowing or intentional” distribution of
heroin was the “but for” cause of death of the victim at issue. (Doc. 1, p. 6). At
the time he entered into a written plea agreement in his criminal case, the
government was only required to prove that the distribution of heroin was a
contributing factor in the death of another. Id. Scott maintains that heroin was
merely a “contributing factor” and not the “but for” cause of the death at issue in
his underlying criminal case. Id. Therefore, the death results enhancement no
longer applied to his sentence. Id.
According to Scott, the remedy under 28 U.S.C. § 2255 is inadequate or
ineffective to challenge his conviction and sentence because Burrage is a statutory
interpretation case that was decided after the time expired for filing a collateral
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attack under § 2255. (Doc. 1, p. 4). He asks this Court to grant his Petition,
vacate his sentence, and resentence him without the “death results” enhancement
under 21 U.S.C. § 841(b)(1)(C). (Doc. 1, p. 8).
III.

Discussion

Generally, a federally convicted person may challenge his conviction and
sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court that
sentenced him.

Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Hill v.

Werlinger, 695 F.3d 644, 645 (7th Cir. 2012); Kramer v. Olson, 347 F.3d 214,
217 (7th Cir. 2003); Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000). A
§ 2255 motion is ordinarily the “exclusive means for a federal prisoner to attack
his conviction.” Kramer, 347 F.3d at 217. However, § 2255 generally limits a
prisoner to one challenge of his conviction and sentence.
A prisoner may not file a “second or successive” motion unless a panel of
the appropriate court of appeals certifies that such motion contains either:
(1) newly discovered evidence “sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the
offense;” or (2) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h).
The Seventh Circuit has recognized that it is possible, under very limited
circumstances, for a prisoner to challenge a federal conviction or sentence under
§ 2241. Section 2255(e) contains a “savings clause,” which authorizes a federal
prisoner to file a § 2241 petition where the remedy under § 2255 is “inadequate
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or ineffective to test the legality of his detention.”

See 28 U.S.C. § 2255(e);

see also United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). Section
2255 is considered to be inadequate or ineffective when three requirements are
met. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). First, the prisoner
must demonstrate that he relies on a “statutory-interpretation case” and not a
constitutional case. Id. (citing Rios, 696 F.3d at 640). Second, the prisoner must
establish that he relies on a retroactive decision that he could not have invoked in
his first § 2255 motion. Id. Third, the sentence enhancement must have been a
“grave enough error to be deemed a miscarriage of justice corrigible therefore in a
habeas corpus proceeding.” Id. (citing In re Davenport, 147 F.3d 605, 611 (7th
Cir. 1998) (a prisoner must show a “fundamental defect in his conviction or
sentence”). In Hill, the Seventh Circuit reiterated that “‘[i]nadequate or ineffective’
means that a ‘legal theory that could not have been presented under § 2255
establishes the petitioner’s actual innocence.’” Hill, 695 F.3d at 648 (citing Taylor

v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); Davenport, 147 F.3d at 608).
Scott’s Petition does not trigger application of the “savings clause” under
§ 2255(e). For one thing, Scott does not rely on a decision that he could not have
invoked in his first § 2255 Motion. He filed his § 2255 Motion after the Supreme
Court issued its decision in Burrage. In fact, Burrage was the focus of Scott’s
initial § 2255 Motion. Even so, the United States District Court for the Eastern
District of Missouri denied the § 2255 Motion on numerous grounds.
The most significant hurdle Scott faced then and now is the fact that he
explicitly waived his right to challenge his conviction or sentence in his written
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plea agreement.

(Doc. 1-2, pp. 4-14).

Scott submitted a signed copy of the

agreement as an exhibit to his Petition. Id. It states, in pertinent part:
b. Habeas Corpus: The defendant agrees to waive all rights to
contest the conviction or sentence in any post-conviction proceeding,
including one pursuant to Title 28, United States Code, Section
2255, except for claims of prosecutorial misconduct or ineffective
assistance of counsel.
(Doc. 1-2, p. 10). In an exhibit to his Petition, Scott asserts that the Court, the
government, and his defense attorney failed to explain that he would be foreclosed
from challenging his conviction or sentence based on a subsequent change in the
law. (Doc. 1-1, p. 6) (claiming they “never mentioned in the guilty plea, that in
case the law changes in the future, that the petitioner gives up his rights to the
new changes”).
Where a guilty plea is entered knowingly and voluntarily, appeal waivers are
enforceable. Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016) (citing

United States v. Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000). “The appeal
waiver stands or falls with the plea agreement.” Id. Further, a waiver of the right
to challenge a conviction or sentence under § 2255 also bars a petition under
§ 2241 because the waiver does not render the remedy under § 2255 inadequate
or ineffective. Muse v. Daniels, 815 F.3d 265 (7th Cir. 2016) (§ 2241 is a “form of
collateral attack”). Moreover, a subsequent change in the law does not make an
appeal waiver involuntary. United States v. Vela, 740 F.3d 1150, 1151 (7th Cir.
2014).
Scott does not assert that his appeal waiver was involuntary or invalid in
the Petition. In any event, a § 2241 petition is not the appropriate vehicle for
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raising this argument when Scott could have instead brought the argument in a
timely § 2255 Motion. The fact that he belatedly raised a related argument in his
reply brief does not trigger application of the “savings clause” here.
Finally, the Court notes that Scott’s argument fails on the merits. In his
plea agreement, Scott explicitly conceded that he “knowingly” violated 21 U.S.C.
§ 841(a), which includes the following element, among others: “(3) that the death
of [another] resulted from the use of heroin, so distributed by the defendant.”
(Doc. 1-2, p. 5). Scott’s written plea agreement goes on to waive “the right to
require the government to provide the elements of the offenses charged against the
defendant beyond a reasonable doubt.” (Doc. 1-2, p. 12). Given these provisions
and Scott’s failure to challenge the voluntary nature of his plea agreement, the
Court finds no merit to his challenge or his Petition.
IV.

Disposition

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is summarily DISMISSED on the merits
with prejudice. Respondent T. WERLICH is also DISMISSED with prejudice.
If petitioner wishes to appeal this dismissal, his notice of appeal must be
filed with this court within thirty days of the entry of judgment. FED. R. APP. P.
4(a)(1(A). A motion for leave to appeal in forma pauperis (“IFP”) should set forth
the issues petitioner plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C).
If petitioner does choose to appeal and is allowed to proceed IFP, he will be liable
for a portion of the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past six months)
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irrespective of the outcome of the appeal.

See FED. R. APP. P. 3(e); 28 U.S.C.

§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008);

Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch,
133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) tolls the 30-day appeal deadline. FED. R.
APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28)
days after the entry of the judgment, and this 28-day deadline cannot be extended.
It is not necessary for petitioner to obtain a certificate of appealability in an appeal
from this petition brought under Section 2241. Walker v. O’Brien, 216 F.3d 626,
638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
Signed this 5th day of April, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.04.05
13:58:46 -05'00'
United States District Judge

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