Scott v. United States of America

Filing 11

ORDER ADOPTING 8 REPORT AND RECOMMENDATION. The petitioners Objections [Doc. 10 are OVERRULED, and petitioners Motion for a Hearing [Doc. 2 is hereby DENIED AS MOOT. Accordingly, this Court hereby DENIES and DISMISSES the petitioners § 224 1 petition [Doc. 1 and this matter is ORDERED STRICKEN from the active docket of this Court. As such, this Court DIRECTS the Clerk to enter judgment in favor of the respondent. This Court hereby DENIES a certificate of appealability. Signed by District Judge John Preston Bailey on 8/17/17. (njz) copy mailed to pro se pet via cert. return rec't mail (Additional attachment(s) added on 8/17/2017: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

TRUMAN SCOTT,
Petitioner,
Civil Action No. 2:17-cv-14
(BAILEY)

v.
UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge Robert W.
Trumble. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed R&R. Magistrate Judge Trumble filed his R&R on
April 27, 2017 [Doc. 8]. In that filing, the magistrate judge recommended that this Court
deny petitioner’s 28 U.S.C. § 2241 motion [Doc. 1] and Motion for Hearing [Doc. 2], and
dismiss this action from the docket.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is timely
made. However, the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendation to which no objections are addressed. Thomas v. Arn, 474
U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de
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novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984).
Here, objections to Magistrate Judge Trumble’s R&R were due within fourteen (14)
days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of
Civil Procedure. The petitioner timely filed his objections [Doc. 10] on May 11, 2017.
Accordingly, this Court will conduct a de novo review of the portions of the magistrate
judge’s R&R to which the petitioner objects. The remainder of the R&R will be reviewed
for clear error.
I. Background1
On February 1, 1999, in the United States District Court for the Eastern District of
North Carolina, petitioner was found guilty on all counts of a six-count indictment that
charged him and two others with: (1) conspiracy to distribute crack cocaine in violation of
21 U.S.C. § 846; (2) conspiracy to interfere with commerce by violence; (3) interference
with commerce by violence; (4) attempt to interfere with commerce by violence in violation

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This Court notes that petitioner filed a nearly identical Petition for Writ of Habeas Corpus
in the United States District Court for the Northern District of West Virginia on September
17, 2016 [1:16-cv-119, Doc. 1]. Petitioner retained counsel in that matter, who, in turn,
authored and filed petitioner’s habeas corpus petition [1:16-cv-119, Id.]. However, said
retained counsel, Edward Smith, Jr., was Denied Leave to Appear Pro Hac Vice after first
failing to timely file a suitable pro hac vice application, then thereafter failing to list a
responsible local attorney [1:16-cv-119, Doc. 15]. After an R&R was issued recommending
that the Court deny and dismiss the petition [1:16-cv-119, Doc. 13], petitioner was apprised
of his right to file pro se objections [1:16-cv-119, Doc. 15]. On December 23, 2016, the
Court adopted the R&R and denied and dismissed the petition [1:16-cv-119, Doc. 21]. This
Court has referred to the Exhibits referenced in the petition here in line with the
corresponding Exhibits in case 1:16-cv-119, as the two petitions are almost identical.
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of the Hobbs Act, 18 U.S.C. § 1951; (5) use of a sawed-off shotgun during a drug trafficking
crime or crime of violence under 18 U.S.C.A. § 924(c)(1); and (6) use of a firearm during
a crime of violence and aiding and abetting under 18 U.S.C.A. § 924(c)(1) and 18 U.S.C.
§ 2 [See 1:16-cv-119, Doc. 9-1 at 4, 17; see also United States v. Scott, 208 F.3d 211,
2000 WL 274966 at *1 (4th Cir. March 14, 2000)]. On April 19, 1999, petitioner was
sentenced on Count 1 to 405 months’ imprisonment; on Counts 2, 3 and 4 to 240 months’
imprisonment to run concurrently with the sentence in Count 1; on Count 5 to 120 months’
imprisonment to be served consecutive to the sentences on Counts 1-4; and on Count 6
to 240 months’ imprisonment to be served consecutive to the sentences in Counts 1-5 [See
1:16-cv-119, Doc. 9-1 at 19].2 Petitioner appealed his convictions to the United States
Court of Appeals for the Fourth Circuit which affirmed his convictions on all counts on
March 14, 2000. Scott, 208 F.3d 211, 2000 WL 274966 at *1. Petitioner filed a petition
for writ of certiorari with the United States Supreme Court which was denied on November
27, 2000. Truman Scott v. United States, 121 S.Ct. 563 (2000).
In the time since his conviction was affirmed, the petitioner has filed a number of
habeas corpus petitions, all of which have been denied and contain the same or similar
allegations against corrupt law enforcement officers in Robeson County, North Carolina.
United States District Judge Terrence W. Boyle of the Eastern District of North Carolina
summarized petitioner’s claims in 2011 by stating:
“Petitioner's claims arise from the federal prosecution and conviction of law
enforcement personnel following an investigation entitled ‘Operation
Tarnished Badge.’ Operation Tarnished Badge was a joint state and federal
investigation of corrupt law enforcement officers in Robeson County, North
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Petitioner’s projected release date is May 26, 2047. See Inmate locator at BOP.gov.
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Carolina. The investigation resulted in over twenty (20) federal convictions,
including the conviction of former Robeson County Sheriff Glenn Maynor and
nearly his entire command structure. See United States v. Maynor, 310
Fed. Appx. 595, 596-98 (4th Cir. 2009). Petitioner alleges officers of the
Robeson County Sheriff's Department ‘fabricated’ evidence and testified
falsely against him in retaliation for Petitioner's refusal to ‘participate in a drug
dealing scheme’ with the officers . . .. He seeks relief on the basis of his
allegedly tainted prosecution and conviction.”
Scott v. United States, 2011 WL 13128265 at *1 (E.D. N.C., Aug. 2, 2011). Petitioner has
repeated many of those allegations in his pending Petition for Relief filed Under 28 U.S.C.
§ 2241, and again alleges that officers from the Robeson County Sheriff’s Department
fabricated evidence and again testified falsely against him.
As the R&R contains a full recitation of the petitioner’s allegations in the instant
petition, the same does not bear repeating here. Petitioner essentially contends that
Federal agents and the prosecution team committed numerous Brady violations before,
during, and after his trial which render him actually innocent of the crimes for which he was
convicted. Accordingly, he now seeks an order vacating his conviction and sentence and
immediate release from confinement. In addition, petitioner requests that he be
compensated for the unconstitutional deprivation of his liberty.
II. Analysis
In the R&R, Magistrate Judge Trumble recommends that this Court deny and
dismiss the instant Petition [Doc. 1], as it contains identical issues to those decided by
United States District Judge Irene M. Keeley in 1:16-cv-119. In his Objections to the R&R,
petitioner “urges this [C]ourt to consider and entertain this application in the interests of
justice,” and contends that the issues in the instant petition, “have not been decided on the
merits” [Doc. 10 at 2]. Petitioner does not otherwise provide an explanation for the
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exceedingly similar nature of the two petitions, nor does he detail how, or why, his prior
petition was not dismissed on the merits.
As noted in the R&R, pursuant to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, 28 U.S.C. § 2244(a) provides that:
No circuit or district judge shall be required to entertain an application for writ
of habeas corpus to inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears that the legality of such
detention has been determined by a judge or court of the United States on
a prior application for writ of habeas corpus, except as governed in section
2255.
28 U.S.C. § 2244(a). It is well settled both in this Court and in Federal courts around the
country that, “a district court is not required to consider a habeas petition filed by an inmate
challenging his federal custody on the same ground that the petitioner advanced in an
earlier habeas petition and lost after a full and fair litigation of his claim.” Blunt-Bey v.
Perdue, 2013 WL 6073496 at *3 (N.D. W.Va. Nov. 18, 2013) (Stamp, J.); see also
Chambers v. United States, 106 F.3d 472, 475 (2nd Cir. 1997); Queen v. Miner, 530
F.3d 253, 255 (3rd Cir. 2008); Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998);
Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000); Jackson v. Morris, 8 F. App'x
890, 892 (10th Cir. 2001).
As noted above, petitioner filed a § 2241 habeas petition before United States
District Judge Irene M. Keeley in case number 1:16-cv-119. That petition is nearly identical
to the instant petition, and he asserts the same challenges to his conviction there that he
asserts herein. One need only compare the petition in case 1:16-cv-119 alongside the
instant Brief in Support of Motion Under 28 U.S.C. § 2241 [Doc. 1-1]. Nearly every
paragraph and sentence in those filings are identical. Additionally, in his Brief in Support
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of Motion Under 28 U.S.C. § 2241, petitioner references exhibits which were attached to
his petition in 1:16-cv-119, but not attached in the instant case. Furthermore, that petition
was decided on the merits after Respondent filed a Motion to Dismiss and Response to
Show Cause in case 1:16-cv-119. Accordingly, this petition is subject to dismissal as a
successive petition.
CONCLUSION
Upon careful review of the record, this Court hereby ADOPTS the magistrate judge’s
Report and Recommendation [Doc. 8] for the reasons stated above. As such, the
petitioner’s Objections [Doc. 10] are OVERRULED, and petitioner’s Motion for a Hearing
[Doc. 2] is hereby DENIED AS MOOT. Accordingly, this Court hereby DENIES and
DISMISSES the petitioner’s § 2241 petition [Doc. 1] and this matter is ORDERED
STRICKEN from the active docket of this Court. As such, this Court DIRECTS the Clerk
to enter judgment in favor of the respondent.
As a final matter, upon an independent review of the record, this Court hereby
DENIES a certificate of appealability, finding that petitioner has failed to make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: August 17, 2017.

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