Scott v. Willis

Filing 4

MEMORANDUM OPINION AND ORDER. Dismissed without prejudice.. Signed by Judge Frank Montalvo. (lc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
1011
SEAN MICHAEL SCOTT,
Reg. No. 37543-013,

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Petitioner,

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WT COURT

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OF TEXAS

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v.

EP-17-CV-1 11-FM

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SCOTT WILLIS, Warden,
Respondent.

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MEMORANDUM OPINION AND ORDER
Sean Michael Scott seeks relief from his federal sentence through an amended pro se petition for a

writ of habeas corpus under 28 U.S.C.

§

2241 (ECF No. 3). After reviewing the record and for the

reasons discussed below, the Court will sua sponte dismiss the petition, pursuant to 28 U.S.C. § 2243.1
Scott, a prisoner at the La Tuna Federal Correctional Institution in Anthony,

Texas,2

was

sentenced to 120 months' imprisonment by the United States District Court for the District of Colorado in
cause number 1:11 -CR-68-JLK after he pleaded guilty, pursuant to a plea agreement,3 to two counts of

possessing child pornography.4 Although Scott did not file a direct appeal, he did submit a motion to
vacate his sentence under 28 U.S.C. § 2255.

He claimed his counsel provided ineffective assistance by

28 U.S.C. § 2243 (2012) ("A court ... entertaining an application for a writ of habeas corpus shall
forthwith award the writ or issue an order directing the respondent to show cause why the writ should not
be granted, unless it appears from the application that the applicant or person detained is not entitled
thereto.").
1

2

Anthony is located in El Paso County, Texas, which is within the territorial confines of the Western
District of Texas. 28 U.S.C. § 124(d)(3) (2012).

Plea Agreement, ECF No. 18, United States v. Scott, 1:11 -CR-68-JLK, D. Cob.

'

J. Crim. Case, ECF No. 36, United States

Mot. Under 28 U.S.C.

§

v.

Scott, 1:11 -CR-68-JLK, D. Cob.

2255, ECF No 38, United States
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v.

Scott, 1:1 1-CR-68-JLK, D. Cob.

(1) not advising him about or obtaining a "binding" plea agreement under Federal Rule of Criminal

Procedure 11(c)(1)(C); (2) not warning him that the district court could deny him a reduction for

acceptance of responsibility; and (3) exercising poor judgment because he was in bad health in the weeks

leading up to the sentencing hearing.6 The Colorado District Court found Scott's theories of ineffective
assistance fatally flawed, and denied the
In his

§

motion.7

2241 petition, Scott asserts (1) the trial court erred when it did not admonish him that he

could withdraw from the plea agreement when it rejected a non-binding recommendation, made under
Federal Rule of Criminal Procedure 1 1(c)(l)(B), to sentence him to 97 months' imprisonment; (2) his
counsel provided constitutionally ineffective assistance; and (3) the trial court abused its discretion when

it imposed a lifetime of supervised release.8
"A section 2241 petition for habeas corpus on behalf of a sentenced prisoner attacks the manner in
which his sentence is carried out or the prison authorities' determination of its duration."9 To prevail, a §
2241 petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the

United States."1° A § 2241 petitioner may make this attack only in the district court with jurisdiction over

his custodian.'

6

Id. at 6-11

/ Order on § 2255 Mot., ECF No. 53, United States v. Scott, 1:11 -CR-68-JLK, D. Cob.; see also United
States v. Scott, 609 F. App'x 550 (10th Cir. 2015) (denying Scott's implied request to file a second or
successive § 2255 motion).
8

Pet'r's Pet.
Pack v.

10

16, ECF No. 3.

Yusuff

218 F.3d 448, 451(5th Cir. 2000) (citations omitted).

28 U.S.C. § 224 1(c) (2012).

United States

v.

Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
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By contrast, a § 2255 motion "provides the primary means of collateral attack on a federal
sentence."12

Relief under § 2255 is warranted for errors that occurred at trial or sentencing.'3 A § 2255

petitioner may only bring his motion in the district of conviction and

sentence.'4

Section 2255 does contain a "savings clause," which acts as a limited exception to these general
rules. It provides that a court may entertain a petition for a writ of habeas corpus challenging a federal

criminal conviction
detention.15

if it concludes that filing a § 2255 motion is inadequate to challenge a prisoner's

A petitioner must satisfy a two-prong test before he may invoke the "savings clause" to

address errors occurring at trial or sentencing in a petition filed pursuant to § 2241:
[T]he savings clause of § 2255 applies to a claim (i) that is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense and (ii) that
was foreclosed by circuit law at the time when the claim should have been
raised in the petitioner's trial, appeal, or first § 2255 motion.'6

12

Pack, 218 F.3d at 451 (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)).

' See Cox, 911 F.2d at 1114 (5th Cir. 1990) ("The district court's dismissal of these grounds clearly was
proper because they concerned alleged errors that occurred at sentencing and, therefore, may be remedied
under section 2255."); Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997) ("Because all of the errors Ojo alleges
[occurred before or during sentencing], they must be addressed in a § 2255 petition, and the only court
with jurisdiction to hear that is the court that sentenced him."); Solsona v. Warden, F.C.i, 821 F.2d 1129,
1131(5th Cir. 1987) (explaining that, because defendant's claims attacked the constitutionality of his
conviction and proof of his claims would undermine the validity of his conviction, his exclusive initial
remedy was a motion under 2255).
' Pack, 218 F.3d at 452.

' See 28 U.S.C. 2255(e) ("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.") (emphasis added).
16

Reyes-Requena

v.

United States, 243 F.3d 893, 904 (5th Cir. 2001).
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A petitioner must prove both prongs to successfully invoke the savings clause.'7 Thus, § 2241 is not a
mere substitute for § 2255, and a petitioner bears the burden of showing that the § 2255 remedy is
inadequate or ineffective.18
The first prong of the test is, essentially, an "actual innocence" requirement whose "core idea is

that the petitioner may be have been imprisoned for conduct which was not prohibited by law."9 To
meet the first prong, a petitioner must rely on a retroactively applicable Supreme Court decision which
establishes that he may have been convicted of a nonexistent offense.2° Scott "invokes Fowler v. United
States, 563 U.S. 668 (2011), to establish the fact that the conduct for which he was convicted was not
criminal."2' Fowler interpreted the federal witness tampering statute, not the federal child pornography

statutes, and was decided on May 26, 2011, well before the Colorado District Court entered its judgment

in Scott's case on February 13, 2012.22 Thus, Scott has not identified a retroactively applicable Supreme

' Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005).
Reyes-Requena, 243 F.3d at 901 (citing Pack, 218 F.3d at 452; Kinder v. Purdy, 222 F.3d 209,214(5th
Cir. 2000)).
18

19

Id. at 903.

20

Id. at 904 (emphasis added).

21

Pet'r's Pet.

18.

22

See Fowler v. United States, 563 U.S. 668, 677-78 (decided May 26, 2011) ("We consequently hold
that (in a case such as this one where the defendant does not have particular federal law enforcement
officers in mind) the Government must show a reasonable likelihood that, had, e.g., the victim
communicated with law enforcement officers, at least one relevant communication would have been made
to a federal law enforcement officer. That is to say, where the defendant kills a person with an intent to
prevent communication with law enforcement officers generally, that intent includes an intent to prevent
communications with federal law enforcement officers only if it is reasonably likely under the
circumstances that (in the absence of the killing) at least one of the relevant communications would have
been made to a federal officer."); J. Crim. Case, ECF No. 36, United States v. Scott, 1:11-CR-68-JLK, D.
Cob. (entered February 13, 2012).
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Court decision which establishes that he may have been convicted of a nonexistent offense. Scott's
claims fail to satisfr the first prong. Moreover, Scott cannot satisfy the second prong of the test. He has

not shown his claims were foreclosed at the time he should have raised them in a direct appeal or § 2255
motion. Thus, Scott has not met his burden of showing that the § 2255 remedy is inadequate or

ineffective.
Since Scott's claims do not meet the stringent requirements of the savings clause, the Court will

not allow him to proceed with this claim pursuant to § 2241. The Court will dismiss Scott's petition as
frivolous, and to the extent that Scott's petition may be construed as a § 2255 motion, the Court will

dismiss it for lack ofjurisdiction.23 Accordingly, the Court enters the following orders:

IT IS ORDERED that Petitioner Sean Michael Scott's amended pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2241 (ECF No. 3) is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that all pending motions in this cause, if any, are DENIED AS
MOOT.

IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this

/2-

day of May, 2017.

FRANK MONTALVO
UNITED STATES DISTRICT JUDGE

23

Ojo, 106 F.3d at 683.

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