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Scott v. United States

United States District Court, S.D. Georgia, Statesboro Division

January 9, 2017



         Convicted and sentenced after a jury trial for his participation in a drug distribution conspiracy, docs. 754, 755, [1]Rodney L. Scott moves under 28 U.S.C. § 2255 to have his sentence reduced from life imprisonment. Docs. 1149 & 1151. The Government filed a response and Scott filed a reply. Docs. 1245, 1271. Review of the parties' briefing shows that Scott's motion must be denied.

         A. Background

         Movant was charged with conspiring to possess with intent to distribute 280 grams or more of cocaine base, five kilograms or more of cocaine hydrochloride, and quantities of ecstasy and marijuana (Count 1), plus three counts of using a communication facility (telephone) to facilitate the conspiracy (Counts 39, 65 & 106). Doc. 3.

         Scott and one of his co-defendants proceeded to trial and were found guilty on every count. Docs. 754 & 755. As part of a special verdict form, the jury also found that Scott and his co-defendant had conspired to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine hydrochloride. Id. Prior to trial, the Government had filed a 21 U.S.C. § 851 notice of its intention to seek enhanced penalties based on Scott's prior felony drug convictions, thus subjecting him to a mandatory life sentence. Doc. 709; see 21 U.S.C. §§ 841(b)(1)(A), 846. The Court, however, granted the Government's motion to withdraw the notice prior to sentencing, thus reducing Scott's exposure to the unenhanced penalty -- 10 years to life. Docs. 983; 984 at o.

         Scott's Presentence Investigative Report added nine points to his drug-offense Guideline level of 32 -- two for the possession of a firearm, two for the maintenance of a residence for the purpose of manufacturing and distributing crack cocaine, two for the commission of the offense as part of a criminal livelihood, three for an aggravating role, and two for obstruction of justice -- for a total offense level of 43. PSR at ¶¶ 33-43. Because Scott's criminal history placed him within category III under the Guidelines, the advisory range of imprisonment was life imprisonment. Id. at ¶ 55 (prior convictions scoring six criminal history points under the Guidelines); ¶ 78 (life imprisonment advised for total offense level of 43 and criminal history category III). Scott objected only to the three-level aggravating role adjustment, id., Addendum at 1, which the Court overruled after a hearing. Doc. 984 at 18. It sentenced him to life imprisonment. Id. at 19-25.

         Scott appealed, arguing, inter alia, that (1) insufficient foundation existed for the admission of certain wiretapped telephone conversations; (2) a law enforcement agent improperly testified as an expert at trial; (3) his prior drug convictions were improperly admitted at trial; (4) his drug-related tattoos were improperly admitted at trial; and (5) he should not have received a three-level aggravating role adjustment. Doc. 1078; United States v. Stanton, 589 F.App'x 477 (11th Cir. 2014). After briefing and oral argument, the Eleventh Circuit affirmed his conviction. See Id. Upon Scott's pro se motion for a reduced sentence under 18 U.S.C. § 3582(c)(2), the Court granted a two-level offense level reduction and reduced his sentence from life imprisonment to 360 months' imprisonment. Docs. 1107 & 1128. He then filed the instant § 2255 motion, seeking to overturn his remaining sentence. Docs. 1149 & 1151.

         B. ANALYSIS

         Scott presents three grounds for relief: (1) "prosecutorial misconduct" and "malicious prosecution, " (2) errors by the district court, and (3) ineffective assistance of counsel during trial and appeal. Doc. 1151.

         1. The Ippolito Factor

         Scott contends that the lead prosecutor in his case, former Assistant United States Attorney Cameron Ippolito, engaged in extracurricular prosecutorial misconduct[2] and malicious prosecution, adversely affecting his sentence. Doc. 1151 at 40.

         Misconduct claims justify relief on collateral review if the prosecutor's actions rendered the proceedings "so fundamentally unfair as to deny him due process." Davis v. Zant, 36 F.3d 1538, 1545 (11th Cir. 1994). Movants thus must show that there is "a reasonable probability that the outcome was changed" by the prosecutor's actions. Id.

         Scott falls short of meeting that burden. Regardless of what Ippolito did in her private life with Agent Valoze and how it may have impacted the outcome of other cases, Scott's case had absolutely nothing to do with Agent Valoze. Valoze was not involved in the Government's investigation or prosecution of Scott in any way, and did not testify in any matter related to Scott. See Ippolito, 2015 WL 424522. Nothing about the Ippolito-Valoze affair could have been used at trial to cross-examine or impeach any witness.[3]

         Scott contends that Ippolito and Valoze "conco[c]ted multiple cases as a unit" (doc. 1149 at 40) and that the testifying agent in his case, Agent Kevin Waters, was friends with Valoze (doc. 1271 at 20-21), ergo they must have colluded in some unidentifiable but meaningful way. He offers, however, absolutely no evidence above mere conjecture of any "spill-over behavior" that even tangentially connects the affair (or friendship) to his case -- much less that the proceedings against him were rendered "so fundamentally unfair as to deny . . . due process" or that, had he known of the affair, there was a "reasonable probability" of a different trial outcome. Davis, 36 F.3d at 1545.[4]

         Scott also alleges that the Government's dismissal of charges against some defendants, who had been misidentified on recorded telephone calls, was reversible error. Doc. 1149 at 40-41. But there is no evidence whatsoever that Scott was misidentified in the phone calls. It cannot be malicious prosecution to dismiss charges against an incorrectly identified defendant while pursuing charges against one correctly identified and inculpated by substantial circumstantial evidence. That is the essence of responsible, ethical prosecution.

         2. Ineffective Assistance of Counsel

         In his second claim, Scott argues that Ryan Babcock, his trial counsel, was ineffective for (1) failing to better argue pre-trial motions and trial objections; (2) failing to move for acquittal based on insufficient evidence against him; (3) failing to request certain jury instructions on conspiracies and buyer-seller relationships; (4) failing to object to a variance between the indictment and proof offered at trial; (5) failing to present evidence of drug sales to a different, unindicted coconspirator; (6) failing to object to "hearsay" testimony; (7) failing to object to Agent Waters' testimony, and (8) failing to raise claims on direct appeal. Sbedocs. 1149, 1151 & 1271.

         "To prevail on a claim of ineffective assistance of counsel, a prisoner must prove that his counsel rendered deficient performance and that he was prejudiced by the deficient performance." Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (citing Strickland v. Washington,466 U.S. 668, 687 (1984)). In evaluating adequacy of performance, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "For performance to be deficient, it must be established that, in light of all the ...

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