Elliott v. Wilson
Filing
2
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 9/3/14. (jf2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAMON ELLIOTT
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Petitioner
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v
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Civil Action No. PJM-14-2732
ERIC WILSON
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Respondent
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DAMON ELLIOTT
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Petitioner
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v
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Civil Action No. PJM-14-2742
UNITED STATES OF AMERICA
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Respondent
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MEMORANDUM OPINION
The above captioned cases concern Petitioner Damon Elliott’s claims that his federal
criminal conviction1 is improper. The first petition filed by Elliott was for writ of habeas corpus
pursuant to 28 U.S.C. §2241 wherein he claims that he is entitled to avail himself of the “savings
clause” found in 28 U.S.C. '2255,2 because he never got an unobstructed procedural shot at
presenting his claims. See Civil Action PJM-14-2732 at pp. 1-2 . His claims are that the
prosecution withheld material exculpatory scientific DNA evidence; exculpatory evidence was
withheld in violation of Brady v. Maryland;3 he is actually innocent of the offense; this court
lacked jurisdiction over the criminal matter as there was a lack of proof the property where the
offense occurred was owned by the federal government; and counsel was ineffective for failing
1
Petitioner was convicted in this Court of aggravated sexual abuse in violation of 18 U.S.C. §2241 for which he
was sentenced to 189 months incarceration on November 11, 1997. See United States v. Elliott, Crim. Case PJM97-053 (D. Md.).
2
28 U.S.C. '2255 provides in relevant part:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to
apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his
detention.
3
Brady v. Maryland, 373 U.S. 83, 87 (1963).
to raise these claims on appeal or to object appropriately at trial. Id. at pp. 2 -3. In the second
petition, Petitioner seeks relief under 28 U.S.C. §1651 based on the identical claims raised in his
§2241 Petition. See Civil Action PJM-14-2742. In light of the identical claims presented in the
two petitions, the cases shall be consolidated for all purposes.
A writ of habeas corpus pursuant to 28 U.S.C. '2241 and a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. '2255 are separate and distinct mechanisms for obtaining
post-conviction relief. A ' 2241 petition attacks the manner in which a sentence is executed.
See 28 U.S.C. '2241(a). By contrast, a '2255 motion challenges the validity of a conviction or
sentence, see, 332 In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997) (en banc). The United
States Court of Appeals for the Fourth Circuit has held that '2255 is inadequate and ineffective
to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's
direct appeal and first '2255 motion, the substantive law changed such that the conduct of which
the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of '2255 because the new rule is not one of constitutional law. In re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
A review of the criminal case the petitions pertain to reveals Petitioner has filed
numerous Motions to Vacate pursuant to 28 U.S.C. §2255 as well as other motions which also
challenged the validity of this conviction and were construed as 2255 motions. In those Motions
to Vacate, Petitioner raised claims similar, if not identical, to those raised in his most recent
filings. Each of his successive motions were dismissed without prejudice with instructions that
he must first obtain permission from the Fourth Circuit Court of Appeals to file a successive
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writ; that authorization was never obtained.4 It is clear the instant petitions are additional
attempts by Petitioner to escape the limitations on successive Motions to Vacate as each are
challenges to the validity of his conviction based on assertions that do not fall within the ambit of
the savings clause.
Moreover, Petitioner has not satisfied the standard for an actual innocence claim. In
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme Court instructed that a federal
habeas court faced with an actual innocence claim should not count unjustifiable delay as an
absolute barrier to relief, but it should be weighed as a factor in determining whether actual
innocence has been reliably established. Id. at 1935-36. In addition, the Court cautioned that
“tenable actual-innocence gateway claims are rare: ‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’” Id. at 1928,
quoting Schlup, 513 U.S. at 329.
The Perkins decision did not create a new right to habeas review, nor did it change
existing law. Rather, it simply clarified the “actual innocence” standard as a gateway to habeas
corpus review. “'To be credible, a claim of actual innocence must be based on reliable evidence
not presented at trial." Calderon v. Thompson, 523 U.S. 538, (1998) (quoting Schlup v. Delo,
513 U.S. 298, 324 (1995)).
New evidence may consist of "exculpatory scientific evidence,
credible declarations of guilt by another, trustworthy eyewitness accounts, and certain physical
evidence." Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citation omitted). The new
evidence must be evaluated with any other admissible evidence of guilt. See Wilson v. Greene,
155 F.3d 396, 404-05 (4th Cir.), appl. for stay and cert. denied sub. nom. Wilson v. Taylor, 525
4
See United States v. Elliott, Crim. Case PJM-97-053 at ECF 112, pp. 1 – 2 (detailing Petitioner’s successive
challenges to the conviction and the Fourth Circuit’s denial of authorization to file a successive application).
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U.S. 1012 (1998). The new evidence must do more than undermine the finding of guilt; it must
affirmatively demonstrate innocence. See Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir.
1999). To invoke the actual innocence exception to the procedural default doctrine, a defendant
"must show that it is more likely than not that no reasonable juror would have convicted him in
light of the new evidence." Schlup, 513 U.S. at 327.
Petitioner has presented no new evidence of an exculpatory nature; rather, he has simply
rehashed the same arguments previously rejected by this Court.5
Having failed to present any
claim that with liberal construction would entitle Petitioner to review of his claims under 28
U.S.C. §2241, the motions shall be construed as successive 2255 Motions to Vacate and
dismissed without prejudice by separate Order which follows.
/s/
PETER J. MESSITTE
September 3, 2014
UNITED STATES DISTRICT JUDGE
5
In 2007 Petitioner filed as exhibits responses to a FOIA requests directed to the U.S. Department of Agriculture,
each of which indicated that no blue prints could be located for “Building 022.” United States v. Elliott, Crim Case
PJM-97-053 at ECF 190 attachments 1 – 5; Civil Action JDB-06-240 at ECF 27. These were presented by
Petitioner to establish the offense did not take place on federal property. Id. Petitioner raises the same claim in the
instant petitions. The inability to locate blue prints for the building does not establish the property was not federally
owned.
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