Scroggins v. USA

Filing 20

ORDER DENYING MOTION FOR POSTCONVICTION RELIEF AND CERTIFICATE OF APPEALABILITY. Signed on 12/13/13 by District Judge Greg Kays. (Francis, Alexandra) Modified on 12/13/2013 - mailed to movant (Francis, Alexandra).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CHRISTOPHER J. SCROGGINS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12-cv-01448-DGK

ORDER DENYING MOTION FOR POSTCONVICTION RELIEF AND
CERTIFICATE OF APPEALABILITY
This case arises out of Movant Christopher J. Scroggins’ (“Movant” or “Scroggins”)
conviction for being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Pending before the Court is Movant’s pro se “Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody” (Doc. 1).

Finding

Movant’s arguments are without merit and an evidentiary hearing is unnecessary, the Court
denies the motion and declines to issue a certificate of appealability.
Factual Background and Procedural History
On November 26, 2008, police officers with the Kansas City, Missouri, Police
Department stopped Scroggins in his 2006 Chevrolet Monte Carlo for failure to signal. After
Movant admitted having outstanding warrants, the officers arrested Scroggins, handcuffed him,
and searched his car. The officers found a Charter Arms .44-caliber revolver hidden beneath the
front console, and they arrested Scroggins for being a felon in possession of a firearm.
On April 2, 2008, a federal grand jury returned a one-count indictment charging
Scroggins as a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).

On November 20, 2009, Scroggins filed a motion to suppress the firearm. Magistrate
Judge Sarah H. Hays held a hearing on the motion on January 5, 2010, and on February 26,
2010, District Judge Dean Whipple denied the motion. On March 9, 2010, Scroggins filed a
motion for a jury viewing of the 2006 Chevrolet Monte Carlo which the Court denied March 26,
2010.
After a two-day trial, a jury found Scroggins guilty on March 30, 2010. On November 9,
2010, the Court sentenced him to 210 months in prison. On November 19, 2010, Scroggins filed
a timely notice of appeal. In the appeal, he contested the district court’s denial of his motion for
a jury viewing. On August 9, 2011, the United States Court of Appeals for the Eighth Circuit
affirmed the decision.

United States v. Scroggins, 648 F.3d 873, 874-75 (8th Cir. 2011).

Scroggins then appealed to the United States Supreme Court, which denied his writ of certiorari
on December 12, 2011.
On December 6, 2012, Scroggins timely filed the pending motion to vacate his sentence
under 28 U.S.C. § 2255.
DISCUSSION
Scroggins argues the Court should grant his motion because: (1) the evidence was
insufficient to support his conviction; (2) the district court erred in denying his motion to
suppress; (3) his attorney was ineffective because she allowed a magistrate judge to preside over
the suppression hearing; (4) the Assistant United States Attorney committed prosecutorial
misconduct; (5) the district court abused its discretion in denying his motion for jury viewing;
and (6) the district court improperly calculated his sentence under the guidelines. The Court
finds no merit to Scroggins’ claims.

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I.

Movant’s claims are meritless.
A.

Movant cannot challenge the sufficiency of the evidence in a § 2255 petition.

Movant’s first argument is that no reasonable juror could have found beyond a reasonable
doubt that he possessed the revolver. Claims challenging the sufficiency of the evidence,
however, are not cognizable in a § 2255 proceeding. Houser v. United States, 508 F.2d 509,
513-14 (8th Cir. 1974); see also Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (“A
claim that all of a crime’s statutory elements were not proven is not a constitutional claim for the
purposes of collateral attack.”). Accordingly, Scroggins’ first claim is denied.
B.

The Court cannot consider Movant’s claim that Judge Whipple erred in
denying his motion to suppress because this claim has been procedurally
defaulted.

Scroggins’ second argument is that Judge Whipple erred in denying his motion to
suppress the revolver. He did not, however, raise this claim on his direct appeal
A motion under § 2255 is not a substitute for a direct appeal or the route to complain
about simple trial errors. Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987)
(citing Johnson v. United States, 805 F.2d 1284, 1287 (7th Cir. 1986)). A movant seeking to
raise a constitutional or jurisdiction issue for the first time in a § 2255 motion must show cause
excusing his failure to raise the issue on direct appeal and actual prejudice resulting from the
error, or he must prove he is actually innocent. Bousley v. United States, 523 U.S. 614, 622
(1998).
Liberally construing Scroggins’ pro se motion as alleging ineffective assistance of
counsel as cause for his failure to raise this issue on his direct appeal, Movant has not established
actual prejudice. To establish actual prejudice, a petitioner must show there was an error which
“worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170

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(1982) (emphasis in original). This is a demanding standard; it requires a defendant to carry a
“significantly higher” burden than he would be required to satisfy on direct review under the
plain-error standard. Id. at 167.
Here, there was no error. Movant claims he was prejudiced because the officers’ search
violated the holding in Arizona v. Gant, 556 U.S. 332 (2009). The officers’ search occurred on
November 26, 2008, and the Supreme Court handed down the Gant decision in April of 2009.
Judge Whipple properly denied Scroggins’ motion to suppress because the officers acted in
good-faith reliance on the controlling case law at the time of the search. Since Gant had not yet
been handed down, there was no error, much less an error which prejudiced Scroggins. Davis v.
United States, 131 S.Ct. 2419, 2428 (2011) (holding the exclusionary rule for a Gant violation
does not to searches conducted before Gant was decided).
Because Scroggins cannot establish actual prejudice for his failure to raise this claim on
his direct appeal, this claim is procedurally defaulted and must be denied.
C.

Movant’s ineffective assistance of counsel claims are without merit.

Scroggins’ third claim is that he received ineffective assistance of trial counsel. He
contends trial counsel erred by: (1) allowing a magistrate judge to preside over his suppression
hearing which violated his right to due process; (2) failing to discuss information with him; (3)
failing to call witnesses on his behalf; (4) failing to ask “basic fact finding questions;” (5)
entering into stipulations with the Government that were not in his best interest; (6) failing to
share accurate information with him about a potential plea bargain; and (7) failing to object to
the amended indictment.
To succeed on a claim of ineffective assistance of counsel, a movant must show that “(1)
trial counsel’s performance was so deficient as to fall below an objective standard of the
customary skill and diligence displayed by a reasonably competent attorney, and (2) trial
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counsel’s deficient performance prejudiced the defense.” Armstrong v. Kemna, 534 F.3d 857,
863 (8th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687-94 (1984)). Failure to
satisfy either prong is fatal to the claim, and the court need not reach the performance prong if
the defendant suffered no prejudice from the alleged ineffectiveness. See Pryor v. Norris, 103
F.3d 710, 713 (8th Cir. 1997).
To establish prejudice, a movant must show that the outcome would have been different
had counsel’s performance not been deficient.

If the movant cannot show a reasonable

probability that the outcome would have been different, he cannot show prejudice. DeRoo v.
United States, 223 F.3d 919, 925 (8th Cir. 2000). 
Judicial review of trial counsel’s performance is highly deferential, “indulging a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
judgment.” Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006). Trial counsel’s “strategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690. Strategic choices made in the shadow
of a lack of preparation or investigation, however, are not protected by the same presumption.
Armstrong, 534 F.3d at 864.
In the present case, Movant has failed to demonstrate that trial counsel’s performance
was deficient in any way. Counsel was not ineffective for failing to object to a magistrate judge
presiding over his suppression hearing. Federal law permits a magistrate to preside over a
suppression hearing and recommend a ruling so long as the final decision rests with the district
judge, 28 U.S.C. § 636(b)(1)(B), and there is no evidence here that the district court did not
follow the statutory requirements. Consequently, there was nothing for Scroggins’ attorney to
object to here.

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Additionally, counsel was not ineffective for failing to discuss information, call
witnesses, or ask questions. These claims necessarily fail because Movant has not identified
what information counsel allegedly should have discussed with him, the names of the witnesses
counsel should have called, or the specific questions counsel should have asked. See Armstrong
v. Kemna, 534 F.3d 857, 867-68 (8th Cir. 2008) (holding a petitioner must make a specific,
affirmative showing as to what the missing evidence or testimony would have been). Movant
has simply made several conclusory allegations, and even a pro se movant must identify specific
facts that support his claims of error. See Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)
(holding the district court should not have summarily dismissed movant’s habeas petition
because it made specific factual allegations).

Purported testimony that could have been

hypothetically beneficial to the defense is insufficient to prove prejudice. Caban v. United
States, 281 F.3d 778, 786 (8th Cir. 2002).
The record also demonstrates that Movant was not prejudiced by defense counsel’s
making agreements with the Government concerning some of the evidence in the case. For
example, while counsel made an agreement to mute the sound while certain segments of the
dashboard camera video were played for the jury, this stipulation benefited Movant because the
redacted portion of the audio contained a discussion of his prior convictions.
Moreover, there is no merit to Scroggins’ claim that counsel failed to notify or discuss the
Government’s plea offer with him. An affidavit from defense counsel demonstrates she notified
Scroggins of the Government’s plea offer in writing and discussed it with him, but Movant chose
to reject it. The offer would have resulted in a guideline sentence range of 46 to 57 months and
allowed Scroggins to request a below guideline sentence. The fact that Scroggins declined the
offer, which in hindsight was a better option than going to trial, does not mean defense counsel
was ineffective.
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Finally, counsel was not ineffective for failing to object to the amended indictment which
changed the serial number of the firearm described in the original indictment. Defense counsel’s
failure to object to the amendment or move for dismissal of the indictment did not violate the
performance prong under Strickland because the amendment did not substantively affect the
charge as originally pled. Amending an indictment to correct a typographical error concerning a
weapon’s serial number does not require dismissal of the indictment because the change goes to
the form rather than the substance of the indictment. United States v. Neff, 525 F.2d 361, 363
(8th Cir. 1975).
Accordingly, the Court holds Scroggins’ ineffective assistance of counsel claims are
meritless.
D.

There was no prosecutorial misconduct.

Next, Scroggins contests “the prosecutor’s motives and intentions,” accusing the assistant
United States attorney who tried the case of committing prosecutorial misconduct. Mot. at 14.
Scroggins makes several sweeping and conclusory allegations, including arguing the prosecutor
misrepresented the evidence and made improper arguments. Scroggins does not, however, cite
any specific behavior or offer any specific examples of prosecutorial misconduct, and the Court
can find nothing in the record suggesting any prosecutorial misconduct. Accordingly, this claim
is denied. See Blackledge v. Allison, 431 U.S. 63, 75-76 (1977) (holding a movant must identify
specific facts to support his petition).
E.

The Court cannot consider Movant’s argument concerning the motion for
jury viewing.

Next, Scroggins claims the district court abused its discretion in denying his motion for
jury viewing. Because the Eighth Circuit affirmed the denial of this motion in Movant’s direct
appeal, 648 F.3d at 874-75, the ruling is the law of the case and the Court may not revisit it

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absent an intervening change in controlling authority. Baranski v. United States, 515 F.3d 857,
861 (8th Cir. 2008). This portion of the motion is denied.

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F.

The Court properly calculated Movant’s guideline sentence.

Finally, Scroggins claims the Court improperly calculated his sentence under the
guidelines by applying an enhancement under § 924(e)(1) for his previous felony convictions.
Scroggins contends his three prior drug trafficking convictions, multiple counts in a single
indictment, should all be considered as part of one criminal episode. Scroggins cites United
States v. Willoughby, 653 F.3d 738 (8th Cir. 2011), in support.

Willoughby, however, is

distinguishable.
As the Government notes, the Willoughby court listed three factors to consider when
determining whether multiple counts among a single indictment count as “occasions different
from one another” for enhancement purposes, including “(1) the time lapse between offenses, (2)
the physical distance between their occurrence, and (3) their lack of overall substantive
continuity.” Willoughby, 653 F.3d at 742-43. In Willoughby the court held that a two-count
indictment was one occasion for purposes of applying § 924(e)(1) because although each count
was a sale to a different police officer, the defendant made the sales at the same location nearly
simultaneously. The present case is distinguishable from Willoughby in that the three counts
were not simultaneous. According to the presentence investigation report, the offenses here
occurred on October 13, 1999; October 20, 1999; and November 5, 1999. Therefore, the Court
properly held that the counts were not one continuous occurrence and overruled defense
counsel’s objection to the § 924(e)(1) enhancement.
For the reasons discussed above, the Court finds no merit to any of Movant’s claims.
II.

No evidentiary hearing is required.
“A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the

motion and the files and records of the case conclusively show that he is entitled to no relief.”
Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks
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omitted). “No hearing is required, however, ‘where the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.’” Id. (quoting Watson
v. United States, 493 F.3d 960, 963 (8th Cir. 2007)); see also Sanders v. United States, 347 F.3d
720, 721 (8th Cir. 2003) (holding a § 2255 motion may be dismissed without a hearing if (1) the
petitioner’s allegations, accepted as true, would not entitle him to relief, or (2) the allegations
cannot be accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact).
As discussed above, Movant’s claims are all either not cognizable, procedurally
defaulted, or conclusively contradicted by the record. Consequently, no evidentiary hearing is
required or will be held.
III.

No certificate of appealability should be issued.
In order to appeal an adverse decision on a § 2255 motion, a movant must first obtain a

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). District courts customarily address
this issue contemporaneously with the order on the motion. See Pulliam v. United States, No.
10-3449-CV-S-ODS, 2011 WL 6339840, at *4 (W.D. Mo. Dec. 16, 2011).
A certificate of appealability should be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
requires the movant to demonstrate “that reasonable jurists could debate whether (or for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 464 U.S. 800, 893 n.4 (1983)). In the
present case, the Court holds no reasonable jurist would grant this § 2255 motion, and so the
Court declines to issue a certificate of appealability.

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Conclusion
For the reasons discussed above, the motion (Doc. 1) is DENIED and the Court declines
to issue a certificate of appealability.
IT IS SO ORDERED.
Date:

December 13, 2013

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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