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Scott v. Willis

United States District Court, W.D. Texas, El Paso Division

May 12, 2017

SEAN MICHAEL SCOTT, Reg. No. 37543-013, Petitioner,
v.
SCOTT WILLIS, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          FRANK MONTALVO UNITED STATES DISTRICT JUDGE.

         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.[5] He claimed his counsel provided ineffective assistance by (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 motion.[7]

         In his § 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 11(c)(1)(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."[10] A § 2241 petitioner may make this attack only in the district court with jurisdiction over his custodian.[11]

         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.[13] A § 2255 petitioner may only bring his motion in the district of conviction and sentence.[14]

         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 if it concludes that filing a § 2255 motion is inadequate to challenge a prisoner's detention.[15] 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.[16]

         A petitioner must prove both prongs to successfully invoke the savings clause.[17] 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."[19] 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.[20] 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."[21] 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 Court decision which establishes that he may have been convicted of a nonexistent offense. Scott's claims fail to satisfy 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 of jurisdiction.[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 ...


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