United States District Court, S.D. Georgia, Statesboro Division
GODBEY WOOD, UNITED STATES DISTRICT COURT CHIEF JUDGE
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. As set
forth in the Magistrate Judge's Report and Recommendation
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 5.
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.
Doc. 1294 at 2-4. Scott argues that prosecutorial misconduct,
district court errors, and ineffective assistance of counsel
(IAC) claims warrant overturning his sentence. Docs. 1149 &
1151. In support of his motion, movant attached a signed
affidavit, which he argued offers unrebutted evidence of both
his factual innocence (that it was not him on the phone
recordings, that he and his codefendant did not deal drugs
together), and that his counsel failed in several meaningful
ways. Doc. 1251 at 65-66. He also attached an affidavit
purportedly signed by his codefendant, Terrance Stanton,
supporting some of Scott's contentions. Id. at
Magistrate Judge found that movant's allegations of
prosecutorial misconduct were baseless, because the
extramarital affair he cited had "absolutely
nothing" to do with Scott's case. Doc. 1294 at 5-7.
The Court further found that counsel was sufficient
(id. at 7-19), and that Scott's other claims of
errors by the trial court were procedurally barred
(id. at 19-21). Nothing in Scott's objections
undercuts the Magistrate Judge's well-reasoned report.
Rather, movant repeats the same arguments already addressed
in the R&R, doubling down on his contention that the
affidavits he attached are "unrebutted" evidence
that, inter alia, counsel failed to investigate his
innocence, the prosecution was out to get him, a severance
motion would have been successful, he and his codefendant
never dealt drugs together, his voice was misidentified on
the phone recordings, counsel failed to present evidence to
the jury that while Scott was indeed a drug dealer he was not
a dealer involved in the conspiracy charged, and the
Government's witness was actually a lay witness but the
jury was led to think him an expert on drug vernacular. Doc.
initial matter, the submission of signed affidavits by Scott
and his codefendant - submitted, it may be noted, in mutual
support of their § 2255 motions that are proceeding
simultaneously before the Court - does not constitute
"unrebutted" evidence. See Drew v. Dep't of
Corn, 297 F.3d 1278, 1293 n.7 (11th Cir.2002) (it is not
sufficient to merely allege facts that would support relief
because "clear precedent establish[es] that such
allegations are not enough to warrant an evidentiary hearing
in the absence of any specific factual proffer or evidentiary
support."). Post-trial, self-serving affidavits, such as
those relied upon here, are viewed with extreme suspicion.
See Drew v. Scott, 28 F.3d 460, 462-63 (5th Cir.
1994). As discussed in the R&R, his codefendant's
affidavit that "would have" done things to
exculpate Scott, while failing to inculpate himself in any
way, is at best "of dubious creditability." Doc.
1294 at n.5.
that matter, Scott's own conclusory affidavit, lacking
reference to actual, creditable evidence of his innocence or
counsel's deficient performance other than his own
self-serving uncorrobated statements, adds nothing. See
Porta v. United States, 2009 WL 762211 at *3 (S.D. Fla.
Mar. 19, 2009). Scott presents no new, reliable evidence
countering the overwhelming and largely unrebutted evidence
of his factual guilt and demonstrating his factual innocence.
See Schlup v. Deio, 513 U.S. 298, 324 (1995)
("a substantial claim that constitutional error has
caused the conviction of an innocent person is extremely
rare. ... To be credible, such a claim requires [a movant] to
support his allegations of constitutional error with new
reliable evidence -- whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence -- that was not presented at trial.").
As explained in the R&R, each of Scott's IAC claims fails
on the merits, see doc. 1294 at 9-19, and movant
offers nothing aside from his own allegations to contradict
those conclusions. See Mostowicz v. United States,
2013 WL 11320054 at *8 (S.D. Fla. Apr. 11, 2013). Finally,
movant's assertion that trial and appellate counsel was
required to affirmatively rebut his meritless allegations in
his own affidavit is also utterly without merit.
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation, doc. 1294, to which objections have been
filed, doc. 1300. Accordingly, the Report and Recommendation
of the Magistrate Judge is ADOPTED as the opinion of the
a prisoner seeking relief under 28 U.S.C. § 2255 must
obtain a certificate of appealability ("COA")
before appealing the denial of his application for writ of
habeas corpus. 28 U.S.C. § 2253(c)(1)(B). This Court
"must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant." Rule
11(a) to the Rules Governing Section 2255 Proceedings. This
Court should grant a COA only if the prisoner makes a
"substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). For the reasons set
forth in the Report and Recommendation, and in consideration
of the standards enunciated in Slack v. McDaniel,529 U.S. 473, 482-84 (2000), petitioner Rodney Lorenzo Scott
has failed to make the requisite showing. Accordingly, a COA
is DENIED in this case. Moreover, because there are no