United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
and sentenced after a jury trial for his participation in a
drug distribution conspiracy, docs. 754, 755, 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.
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.
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.
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.
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.
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.
contends that the lead prosecutor in his case, former
Assistant United States Attorney Cameron Ippolito, engaged in
extracurricular prosecutorial misconduct and malicious
prosecution, adversely affecting his sentence. Doc. 1151 at
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.
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.
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.
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.
Ineffective Assistance of Counsel
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 &
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 ...