United States District Court, D. Maryland
ROGER W. TITUS, District Judge.
On December 17, 2010, Craig Scott ("Scott") filed a petition to vacate, set aside, or correct his sentence for three drug-related convictions. Scott attacks his convictions on a number of grounds, including: (1) the sufficiency of the evidence supporting his convictions, (2) the admissibility of testimony by two police officer expert witnesses, (3) the government's decision to call a witness it allegedly knew would not testify, and (4) the admissibility of a co-defendant's prior conviction for impeachment. ECF No. 1439. Each of these claims must fail, however, because Scott neglected to raise them on direct appeal or because they were already litigated on direct appeal.
A law enforcement investigation in 2004 revealed an "extensive drug-trafficking organization that operated in Maryland, the District of Columbia, New York, and elsewhere, " leading to the "arrest of over thirty individuals." United States v. Johnson, 587 F.3d 625, 628-29 (4th Cir. 2009). "The major figures in this organization included Paulette Martin, Gwendolyn Levi, and Moises Uriarte." Id. at 628. Gwendolyn Levi ("Levi"), Scott's mother, was one of the heroin suppliers in the organization, and telephone call intercepts showed that Scott "helped Levi process and distribute heroin." Id. at 629. On these phone calls, Scott and Levi discussed, among other things, Scott's "heroin customers [that] were on hold, '" Scott's retrieval of heroin from Levi's basement, and Scott's packaging of heroin for distribution. Id.
In 2005, Scott was tried in this Court together with two co-defendants, Donna Johnson ("Johnson") and John Martin ("Martin"), and "[o]n December 22, 2005, a jury convicted all three... of conspiring to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 (2006)." Id. The jury also convicted Scott of using "a communications device to facilitate narcotics trafficking in violation of 21 U.S.C. § 843(b) and possession with intent to distribute heroin in violation of 21 U.S.C. § 841." Id. at 629-30. On April 28, 2006, this Court sentenced Scott to 150 months imprisonment and five years of supervised release. ECF No. 822.
Scott and his co-defendants appealed their convictions to the Court of Appeals for the Fourth Circuit, raising a number of issues, including that this Court erred in not granting a mistrial after the government called Levi to the stand and she refused to testify. Johnson, 587 F.3d at 630. Scott's co-defendants raised certain claims individually, with Johnson attacking "the sufficiency of the evidence supporting her... convictions" and Martin challenging the admission of expert testimony by two police officers and the admission of a prior conviction for impeachment. Id. at 630, 633. Scott, however, did not raise any individual claims on appeal. Id. at 630. The Fourth Circuit rejected all of their claims and affirmed the convictions of Scott and his co-defendants on December 2, 2009. Id. at 628, 640.
Scott filed his petition collaterally attacking his convictions and sentence, which this Court construes as a petition under 28 U.S.C. § 2255, on December 17, 2010. ECF No. 1439. The government responded in opposition on February 17, 2011. ECF No. 1447.
Under 28 U.S.C. § 2255, a federal prisoner may file a petition to vacate, set aside, or correct a sentence. 28 U.S.C. § 2255. Generally, a petitioner that does not raise issues on direct appeal cannot raise them in a § 2255 collateral attack, as "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). "In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, the movant  must show cause and actual prejudice resulting from the errors of which he complains, " United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999), or he  must show "actual innocence, " United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010).
Under the cause and prejudice exception to the bar against raising an issue not presented on direct appeal, "[t]he existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel." Mikalajunas, 186 F.3d at 493; see also Coleman v. Thompson, 501 U.S. 722, 753 (1991) ("For example, a showing that the factual or legal basis for a claim was not reasonably available to counsel, ... or that some interference by officials'... made compliance impracticable, would constitute cause under this standard.'") (internal citations omitted). To show "actual prejudice" under this first exception, the petitioner must show that the alleged error(s) at trial "worked to his actual and substantial disadvantage." Frady, 456 U.S. at 170; see also Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (citing same standard).
Under the "actual innocence" exception to the procedural default bar, "a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent." Pettiford, 612 F.3d at 282 (internal quotation marks and citation omitted). "Furthermore, the movant must show actual innocence by clear and convincing evidence.'" Id. (internal citations omitted).
In addition to the procedural default of claims not raised on direct appeal, a petitioner may not use a § 2255 petition to re-litigate questions previously raised and considered on direct appeal. See Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) ("[Petitioner] will not be allowed to recast, under the guise of collateral attack, questions fully considered by this court [on direct appeal]."). However, should a petitioner show "an intervening change in the law" since the appeal, further review might be required. Davis v. United States, 417 U.S. 333, 342 (1974) (internal citations omitted).
Scott seeks relief from his sentence because, he argues, (1) the evidence supporting his convictions was insufficient, (2) this Court impermissibly admitted testimony by two police officer expert witnesses, (3) the government called a witness to testify that it allegedly knew would not testify, and (4) a prior conviction of co-defendant Martin should not have been admitted for impeachment. ECF No. 1439. This Court is precluded from considering the merits of any of these claims, and they will each be denied. Scott's first, second, and fourth claims are procedurally defaulted, as Scott did not raise them before the Fourth Circuit, and he fails to show either (1) cause and actual prejudice or (2) actual innocence sufficient to overcome the procedural ...