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IN THE UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

IN RE BENJAMIN F. SCOTT, NO. 15-________________MOVANT D.C. NO. 1:02CR27

Northern District of West Virginia

JOINT EMERGENCY MOTION UNDER CIRCUIT RULE 22(d) FORAN ORDER AUTHORIZING DISTRICT COURT TO CONSIDER

A SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255

The United States of America, by counsel, Randolph J. Bernard, Criminal

Chief, United States Attorney for the Northern District of West Virginia, and

Benjamin F. Scott, through his counsel, Brian J. Kornbrath, Federal Public Defender

for the Northern District of West Virginia, request that this Court, on an expedited

basis, authorize the district court to entertain a successive collateral attack pursuant

to 28 U.S.C. § 2244(b)(3), so that Mr. Scott may immediately assert a claim under

Johnson v. United States, 135 S.Ct. 2251 (2015). As explained below, Mr. Scott has

already served more than the ten year statutory maximum for his offense of

conviction.

Attached to his Motion pursuant to Local Rule 22(d), are copies of movant’s

§ 2255 application he seeks authorization to file in the district court, and all prior §

2255 applications, orders and opinions entered therein.

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BACKGROUND

I. Conviction and Appeal.

On May 8, 2002, a grand jury returned a one count indictment charging Mr.

Scott with being a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1). A § 922(g)(1) violation normally carries a statutory maximum ten year

term of imprisonment. 18 U.S.C. § 924(a)(2). The government, however, alleged

three prior convictions in the indictment and noticed it would seek a sentencing

enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The government alleged Mr. Scott had three convictions that qualified as ACCA

predicates: a West Virginia burglary conviction; a West Virginia wanton

endangerment with a firearm conviction; and a New Jersey aggravated sexual assault

and endangering the welfare of a child conviction.

Mr. Scott proceeded to trial and was convicted by a jury. On August 5, 2004,

the district court sentenced the defendant under the ACCA and imposed a 260 month

sentence.

Mr. Scott unsuccessfully appealed to this Court. On September 20, 2005, his

conviction and sentence was affirmed. United States v. Scott, 424 F.3d 431 (2005).

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II. First Section 2255 Motion.

On November 8, 2006, Mr. Scott filed a § 2255 motion. The district court

denied the § 2255 motion on its merits August 27, 2008. This Court affirmed the

denial of Mr. Scott’s § 2255 motion in an unpublished decision issuing on May 27,

2009. United States v. Scott, 325 Fed.Appx. 246, 2009 WL 1464922.

III The Present Joint Application to File a Successive § 2255 Motion.

This joint motion now requests authorization from this Court for Mr. Scott to

file a successive § 2255 motion based on Johnson v. United States, ___ U.S. ___, 135

S.Ct. 2251 (2015). In Johnson, the Supreme Court overruled Sykes v. United States,

___ U.S. ___, 131 S.Ct. 2267 (2011), and James v. United States, 550 U.S. 192

(2007), and held that imposing an increased sentence under the residual clause of the

ACCA violates the Constitution’s guarantee of due process. In light of Johnson, the

parties agree that Mr. Scott is actually innocent of being an armed career criminal and

is entitled to relief.

LEGAL ANALYSIS

The gatekeeping Antiterrorism and Effective Death Penalty Act, as set out in

Section 2255(h)(2), allows a prisoner to apply for leave to file a successive § 2255

motion based on “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C.

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§ 2255(h)(2). Under this provision, a federal prisoner must make a prima facie

showing that the petition for filing is based on a (1) previously unavailable (2) new

rule (3) of constitutional law that (4) has been made retroactive by the Supreme Court

to cases on collateral review. Tyler v. Cain, 533 U.S. 656, 662 (2001); Ezell v. United

States, 778 F.3d 762 (9th Cir. 2015). This motion, based on Johnson, meets that

standard.

I. Johnson Announced a Previously Unavailable New Rule of ConstitutionalLaw.Mr. Scott readily meets three of the four requirements. One, the Supreme

Court’s decision in Johnson announces a new rule. It is well established that a rule

is “new” if it was not “dictated by precedent existing at the time the defendant’s

conviction became final.” Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013)

(quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). As the Seventh Circuit recently

announced, “Johnson announces a new rule: It explicitly overrules the line of

Supreme Court decisions that began with Begay, and it broke new ground by

invalidating a provision of ACCA.” Price v. United States, __ F.3d __, 2015 WL

4521024 *1 (7th Cir. 2015).

Second, Johnson announced a rule “of constitutional law.” Johnson expressly

holds that “imposing an increased sentence under the residual clause of the [ACCA]

violates the Constitution’s guarantee of due process.” Johnson, 135 S.Ct. at 2563; see

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also Price, 2015 WL 4621024, at *1. It declares that the residual clause is

unconstitutionally vague and that the Due Process Clause forbids any use of it in

increasing a statutory minimum or maximum sentence. Id.

Nor was the result in Johnson previously available to Mr. Scott. In both James,

550 U.S. at 210 n. 6, and Sykes, supra, the Court rejected suggestions by the

dissenting Justices that the residual clause was unconstitutionally vague. Until

Johnson was decided, any successive collateral attack would have been futile.

II. Mr. Scott Has Made a Prima Facie Showing that Johnson Is Substantive

and that He Is Entitled to Vacation of His ACCA Sentence.

The only remaining question is whether the Supreme Court has “made”

Johnson retroactive to cases on collateral review. 28 U.S.C. § 2255(h)(2). Whether

the Court has done so turns on the nature of the rule. Under the retroactivity

principles of Teague v. Lane, 489 U.S. 288 (1989), new procedural rules are not

retroactive to cases on collateral review. But the Supreme Court has held that

substantive rules are not subject to Teague, and they necessarily apply retroactively

on collateral review. See Beard v. Banks, 542 U.S. 406, 411 n. 3 (2004) (“Rules that

fall within what we have referred to as Teague’s first exception ‘are more accurately

characterized as substantive rules not subject to [Teague]’s bar’”) (quoting Schriro

v. Summerlin, 542 U.S. 348,352 n. 4 (2004)). As the Court explained, “Teague by its

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terms applies only to procedural rules.” Bousley v. United States, 523 U.S. 614, 620

(1998).

In Bousley, the Court held that Teague does not apply to changes in the

substantive scope of a criminal statute that have the effect of placing certain conduct

outside the reach of the law. Thus, “[n]ew substantive rules . . . include [ ] decisions

that narrow the scope of a criminal statute by interpreting its terms,” plus

“constitutional determinations that place particular conduct or persons covered by the

statute beyond the State’s power to punish.” Schriro, 542 U.S. at 351-352 (emphasis

in original). This is because any decision “holding that a substantive federal criminal

statute does not reach certain conduct” will “necessarily carry a significant risk that

a defendant stands convicted of ‘an act that the law does not make criminal.’” Id. at

620 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). Such a substantive

rule “alters the range of conduct or the class of persons that the law punishes.”

Summerlin, 542 U.S. at 3535; see also Saffle v. Parks, 494 U.S. 484, 495 (1990)

(substantive rule will “prohibit the imposition of . . . punishment on a particular class

of persons”).

Johnson’s striking of the residual clause as unconstitutional does not simply

alter sentencing procedures; it specifically forbids substantive application of a statute.

As such, it constitutionally narrows the class of offenders covered by ACCA and

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places certain offenders beyond the government’s power to punish under the statute.

Defendants convicted under 18 U.S.C. § 922(g) who have sustained prior felonies

that “otherwise involve[ ] conduct that presents a serious potential risk of physical

injury to another,” and who do not have three other convictions that qualify as a

“serious drug offense” or the surviving portion of the “violent felony” definition in

18 U.S.C. § 924(e)(2), can no longer be subjected to a formerly mandatory fifteen

year minimum term of imprisonment. Therefore, because Johnson appears to be a

substantive rule, and the Supreme Court has established that substantive rules apply

retroactively, the parties agree that Mr. Scott has made at least a prima facie showing

that the Johnson rule has been “made retroactive to cases on collateral review by the

Supreme Court,” as required by Section 2255(h)(2).

Indeed, in Price, the Seventh Circuit applied these principles to conclude that

Johnson announced a new substantive rule and that the Supreme Court had made

“Johnson categorically retroactive to cases on collateral review.” 2015 WL 4621024,

at * 3. The Court explained:

In deciding that the residual clause is unconstitutionally vague, the SupremeCourt prohibited a “certain category of punishment for a class of defendantsbecause of their status.” Saffle [v. Parks], 494 U.S. at 494. A defendant whowas sentenced under the residual clause necessarily bears a significant risk offacing “a punishment that the law cannot impose upon him.” [Schriro v.]Summerlin, 542 U.S. at 352. There is no escaping the logical conclusion that

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the Court itself has made Johnson categorically retroactive to cases oncollateral review.

Id.1

III. Mr. Scott Is Entitled to Certification Under Section 2255(h)(2).

The parties agree that Mr. Scott has made a “prima facie showing,” 28 U.S.C.

§ 2244(b)(3)(C), and that his application satisfies § 2255(h)(2) because he has made

“a sufficient showing of possible merit to warrant a fuller exploration by the district

court.” Thompson, 151 F.3d at 925. He has been imprisoned for over ten years under

a provision of the ACCA that the Supreme Court has held unconstitutionally vague.

Under § 2255(h)(2), a successive motion may rely on “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). Mr. Scott has a

plausible argument that Johnson is a new, previously unavailable rule of

constitutional law that the Supreme Court has, through “a combination of holdings,”

made Johnson retroactive to cases on collateral review. See Tyler, 533 U.S. at 666.

Mr. Scott had no opportunity when he filed his first 2255 motion in 2006 to argue

that a 2015 Supreme Court decision established that he is serving a sentence above

1 In Striet v. United States, No. 15-72506, the Ninth Circuit granted the parties’ motionseeking authorization to file a successive § 2255 based on an identical claim by order enteredAugust 25, 2015.

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the statutory maximum for his offense, in violation of the Due Process Clause. And

Mr. Scott has a further claim of “possible merit” that the Supreme Court has made

Johnson retroactive through a combination of holdings. Banks establishes that

substantive rules are retroactive, and Bousley and Summerlin establish that Teague

is concerned only with rules of procedure.

Because Mr. Scott has made a prima facie showing of a tenable claim, he

should be allowed to present his claim to the district court so that the court may have

the opportunity to fully review the claim in more detail. See, e.g., Price,

at * 3.2

CONCLUSION

Because Mr. Scott has presented a prima facie showing of a tenable claim that

all the requirements of § 2255(h) are satisfied, the parties respectfully request his

motion be granted and that he be allowed forthwith to present his claim before the

district court.

If the Court concludes that the prima facie showing has been made and the

authorization to proceed with a successive § 2255 should be granted, because Mr.

2 Of the three prior convictions listed in the indictment against Scott as Armed CareerCriminal predicates, it appears that at least one conviction is no longer valid given reliance on theresidual clause of 18 U.S.C. § 924(e) deemed unconstitutional in Johnson. This includes theWest Virginia wanton endangerment with a firearm conviction. The New Jersey aggravatedsexual assault conviction may be invalid as well given its elements involve the age of the victimrather than use of force.

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Scott has already served more time than the maximum term for the offense of

conviction without the ACCA sentence enhancement, the parties ask the Court to

issue an immediate order authorizing the filing of the successive § 2255 petition as

attached pursuant to Local Rule 22(d).

DATED this 9th day of September, 2015.

Respectfully submitted,

By: s/ Brian J. Kornbrath William J. Ihlenfeld, IIBrian J. Kornbrath United States AttorneyFederal Public Defender Northern District of West VirginiaNorthern District of West Virginia

s / Randolph J. Bernard

Randolph J. BernardCriminal Chief

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mailto:[email protected]

CERTIFICATION OF SERVICE

I hereby certify that on September 9, 2015, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Fourth

Circuit using the CM/ECF system, which will send notification of such filing to the

following CM/ECF user:

Randolph J. Bernard, Esq.United States Attorney Office1125 Chapline StreetWheeling, West Virginia 26003(304) 234-0110

I have also mailed a copy of this motion to the Movant, Benjamin F. Scott,

USM Reg. No. 26139-050, FCI Petersburg, P.O. Box 1000, Petersburg, Virginia

23804.

By: s/ Brian J. KornbrathBrian J. KornbrathWV State Bar No. 7330Attorney for DefendantFederal Public Defender Office230 West Pike Street; Suite 360Clarksburg, West Virginia 26302Tel. (304) 622-3823Fax. (304) 622-4631E-Mail. [email protected]

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Case 1:02-cr-00027-IMK-JSK Document 60 Filed 11/08/06 Page 1 of 13 PageID #: 626Appeal: 15-291 Doc: 2-2 Filed: 09/09/2015 Pg: 1 of 13 Total Pages:(12 of 64)

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF WEST VIRGINIA

BENJAMIN FRANKLIN SCOTT,

Petitioner,

v. Civil Action No. 1:06cv163Criminal Action No. 1:02cr27(Judge Keeley)

UNITED STATES OF AMERICA,

Respondent.

OPINION/REPORT AND RECOMMENDATION

On November 8, 2006, the pro se petitioner, Benjamin Franklin Scott, filed a Motion Under

28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody and

a Motion to Proceed as a Pauper. On November 15, 2006, the undersigned conducted a preliminary

review of the file and found that summary dismissal was not warranted. Accordingly, the

Respondent was directed to show cause why the writ should not be granted.

On December 4, 2006, the Respondent filed a response to Petitioner § 2255 motion. In the

response, the Respondent asserts that it has conferred with Chief Public Defender Brian Kornbrath,

whose conduct is challenged in the petition, and believes that only an evidentiary hearing can

resolve the factual issues raised in the petition. Therefore, the Respondent moves for a date and time

for the taking of evidence regarding the allegations in the petition and to allow the United States

further opportunity to respond to the factual issues as they are developed from the hearing.

On December 22, 2006, the Petitioner filed a reply to the Respondent’s response. In his

reply, Petitioner asserts that the Respondent has not filed a proper response to his § 2255 motion as

set forth in Rule 5 of the Rules governing Section 2255 Proceedings in the District Courts.

Case 1:06-cv-00163-IMK-JSK Document 7 Filed 12/28/2006 Page 1 of 2Case 1:02-cr-00027-IMK-JSK Document 67 Filed 12/28/06 Page 1 of 2 PageID #: 694Appeal: 15-291 Doc: 2-4 Filed: 09/09/2015 Pg: 1 of 2 Total Pages:(26 of 64)

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Petitioner also reiterates the Respondents request for the Court to set a date and time for an

evidentiary hearing concerning the facts in the petition. This matter is before the undersigned for

a report and recommendation pursuant to LR PL P 83.15 and Standing Order No. 4.

Upon a review of the pleadings in this case, the undersigned recommends that the parties

requests for an evidentiary hearing be GRANTED, that the Petitioner’s request to proceed as a

pauper (dckt. 2) be GRANTED and that counsel therefore be APPOINTED to represent Petitioner

at the evidentiary hearing.

Within ten (10) days after being served with a copy of this Opinion/Recommendation, any

party may file with the Clerk of the Court written objections identifying those portions of the

Recommendation to which objections are made, and the basis for such objections. A copy of such

objections shall also be submitted to the Honorable Irene M. Keeley, United States District Judge.

Failure to timely file objections to the Recommendation set forth above will result in waiver of the

right to appeal from a judgment of this Court based upon such Recommendation. 28 U.S.C. §

636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);

United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984).

The Clerk is directed to send a copy of this Report and Recommendation to the pro se

petitioner and counsel of record.

DATED: December 28, 2006.

/s John S. KaullJOHN S. KAULLUNITED STATES MAGISTRATE JUDGE

Case 1:06-cv-00163-IMK-JSK Document 7 Filed 12/28/2006 Page 2 of 2Case 1:02-cr-00027-IMK-JSK Document 67 Filed 12/28/06 Page 2 of 2 PageID #: 695Appeal: 15-291 Doc: 2-4 Filed: 09/09/2015 Pg: 2 of 2 Total Pages:(27 of 64)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

BENJAMIN FRANKLIN SCOTT,

Petitioner,

v. Civil Action No. 1:06cv163Criminal Action No. 1:02cr27(Judge Keeley)

UNITED STATES OF AMERICA,

Respondent.

ORDER DENYING PETITIONAND DISMISSING CASE WITH PREJUDICE

I. Facts and Procedural History

On or about October 26, 2001, the petitioner, Benjamin

Franklin Scott (“Scott”) traveled to Clarksburg, West Virginia with

some friends. The group stopped at Manny B’s, a local pool hall.

While Scott was at Manny B’s, Devin Martin shot Todd Turner and

Chandler Pierce. After this shooting, Scott, and three individuals

known as “Trapper,” “Aaron” and Derek Henderson (“Henderson”),

drove a car to Trapper’s house, where Trapper obtained a firearm.

Shortly after that, Trapper got out of the car at a convenience

store. Scott, Aaron and Henderson then traveled to Kristin Davis’s

(“Davis”) house, where Aaron got out, leaving Henderson and Scott

in the vehicle. Henderson was driving and Scott was riding in the

front passenger seat. Shortly thereafter, the police pursued their

car. During this pursuit, a gun was thrown from the front passenger

side window, which the police later retrieved. After the pursuit,


SCOTT V. UNITED STATES 1:06cv1631:02cr27

ORDER DENYING PETITION AND DISMISSING CASE WITH PREJUDICE

2

Scott fled on foot and was apprehended the next day. Because of

his prior criminal record, Scott was indicted on May 8, 2002 for

being a felon in possession of a firearm.

A jury convicted Scott on April 27, 2004 and this Court

sentenced him to 260 months of incarceration. On September 20,

2005, the Fourth Circuit affirmed his conviction. Scott then filed

this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence by a Person in Federal Custody. In his petition, Scott

raises 43 grounds of ineffective assistance of trial counsel, nine

of prosecutorial misconduct, and a request for correction of

sentence. Pursuant to LR PL P § 82.15, and Standing Order No. 5,

the case was referred to United States Magistrate Judge John S.

Kaull for preliminary review.

On November 15, 2006, Magistrate Judge Kaull conducted a

preliminary review of the petition and determined that summary

dismissal was not appropriate at that time. Therefore, the

respondent was directed to file an answer to Scott’s motion.

On December 4, 2006, the United States filed its response,

asserting that only an evidentiary hearing could resolve the

factual issues raised in the petition. Thus, the government

requested that the Court set a date and time for the taking of




3

evidence and that the United States be granted a further chance to

respond to the petition once the factual issues were more fully

developed. On December 22, 2006, the petitioner filed his reply.

On December 28, 2006, Magistrate Judge Kaull issued a Report

and Recommendation that recommended granting the government’s

request for a hearing and appointing counsel to represent the

petitioner at such hearing. On July 27, 2007, the Court affirmed

the Report and Recommendation, appointed counsel for Scott, and

scheduled a fact-finding hearing for August 24, 2007.

After granting each party a separate motion to continue, the

Court held a fact-finding hearing on November 1, 2007. Present at

the hearing were the petitioner and his appointed counsel, Deanna

Pennington, Assistant United States Attorney Robert McWilliams, and

the Federal Public Defender, Brian Kornbrath (“Kornbrath”), Scott’s

trial counsel.

After taking testimony from the petitioner and Mr. Kornbrath,

the Court found that Scott had either abandoned or withdrawn the

following grounds of ineffective assistance of counsel:

• Ground 24 - failing to object to hearsay testimony givenby Todd Turner.

• Ground 31 - failing to effectively cross-examine thegovernment’s witness, William Cannon.




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• Ground 36 - failing to object when the governmentrepeatedly referred to the vehicle as the defendant’s.

• Ground 39 - failing to object to the presentence report.

Additionally, for the reasons stated on the record, the Court

denied the following grounds of ineffective assistance of counsel

and foreclosed further briefing as to these issues:

• Ground 4 - counsel stated during closing arguments thatthe jury should find the petitioner guilty as charged.

• Ground 5B - as it relates to the petitioner’s claim thatcounsel was ineffective with regard to the intentinstruction.

• Ground 7 - failing to advise the petitioner about apossible defense of temporary insanity.

• Ground 10 - counsel’s opening statement was irrelevantand made no sense.

• Ground 12 - failing to use affirmative defenses of heatof passion, temporary insanity, duress, lack of capacity,quality of act, necessity, extreme emotional disturbance,or justification.

• Ground 16A - to extent petitioner argues that hisunmirandized statement could not be used under anycircumstances.

• Ground 19 - failing to object to jury instruction onconstructive possession which stated a burden of prooflower than beyond a reasonable doubt.

• Ground 20 - failing to object when government asked courtto take judicial notice of fact that indictment wasreturned unsealed.




1 Those grounds are: 1, 2, 3, 5A (related to trial preparation), 6,8, 9, 11, 13, 14, 15, 16B (related to strategy), 17, 18, 21, 23, 25, 26,28, 33, 34, 35, 38, 40, 41, 42, 43. The Court noted, however, someskepticism as to the viability of some of those, but left further pursuitof those claims to the discretion of Scott and his counsel. To the

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• Ground 22 - failing to object to indictment on grounds ofvindictiveness to extent petitioner’s argument is basedon fact that he was prosecuted and Derrick Henderson andTodd Turner were not.

• Ground 27 - failing to object to alleged perjurioustestimony of Derrick Henderson.

• Ground 29 - advising petitioner to only speak incourtroom when either counsel or court told him to unlesspetitioner can provide further facts to support thisclaim.

• Ground 30 - to extent petitioner argues he was notadvised on possibility of upward departure this issue ismoot as no upward departure was granted.

• Ground 32 - failing to effectively question OfficerWebber.

• Ground 37 - failing to object during the government’sclosing argument to statements that petitioner was notworthy of much belief because of past criminal record andto statements about the petitioner being a fugitive.

With respect to Scott’s nine allegations of prosecutorial

misconduct and remaining claims of ineffective assistance of

counsel, the Court determined that it needed further briefing. The

Court also denied an untimely Rule 35 motion.

In light of the findings made at the hearing, 27 claims of

ineffective of assistance of counsel remained,1 as well as the nine




extent that claims are not asserted in Scott’s briefs, the Courtconsiders those arguments waived.

6

allegations of prosecutorial misconduct. These are now fully

briefed and ripe for decision.

II. Ineffective Assistance of Counsel

A. Legal Standard

To establish that he was convicted in violation of his right

to effective assistance of counsel, a claimant must satisfy both

prongs of the Strickland test. Strickland v. Washington, 466 U.S.

668 (1984). A claimant must show both (1) that "counsel's

performance was deficient" and (2) that "the deficient performance

prejudiced the defense." Id. at 687.

As to the first prong, to determine whether an attorney's

conduct was deficient, "the court must . . . determine whether, in

light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent

assistance." Id. at 690. Because it may be tempting to find an

unsuccessful trial strategy to be unreasonable, "a court must

indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the




7

circumstances, the challenged action might be considered sound

trial strategy." Id. at 689.

As to the second prong, to establish that he was "prejudiced"

by his attorney's constitutionally deficient performance, a

claimant must "show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. This test is

"highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382

(1986).

B. Scott’s arguments

Scott alleges that his trial counsel, Kornbrath, failed to

conduct a reasonable investigation of witnesses who may have

illuminated what Scott’s role in the alleged criminal conduct

actually was. Specifically, Kornbrath allegedly failed to

interview not only the government’s witnesses but also other

witnesses who may have testified on Scott’s behalf.

First, Scott alleges that Kornbrath failed to locate and

interview “Aaron” and “Trapper.” Scott alleges that he knew that

“Trapper” was Derek Garrett and that Kornbrath knew this because

Scott told him. Nevertheless, Kornbrath failed to locate Trapper

or interview him. Scott alleges that Trapper would have testified




8

as to the chain of events during the night he allegedly possessed

the firearm and, importantly, as to who had control of the firearm.

Scott argues that the only witness Kornbrath or his

investigator did interview was Turner, and the investigator also

attempted to interview Henderson. Scott asserts that had Kornbrath

interviewed other witnesses present on the night of the shooting he

might have been able to more accurately identify Aaron and Trapper.

Scott also argues that Kornbrath should have interviewed

Kristin Davis. Kornbrath testified at the hearing that he did not

interview her because, based on his review of discovery, it did not

appear that she would be a witness helpful to the defense. Scott

alleges that, had Davis been called as a witness, she could have

testified that Henderson, not Scott, had possession of the weapon.

Scott asserts that Kornbrath also erred when he failed to

interview or call Detective David Wygal as a witness. Scott

maintains that, while he was in custody at the Clarksburg Police

Department on October 27, 2001, Detective Wygal played a tape for

him containing statements by Henderson (the “Henderson tape”).

Kornbrath also allegedly failed to adequately investigate the

existence of this tape or file a motion to compel its production.

The tape has never been located and the government denies it ever




9

existed. Scott also includes a blanket assertion that Kornbrath

failed to interview any government witnesses and, therefore, was

unprepared to cross-examine them.

Scott next alleges that Kornbrath failed to adequately cross-

examine the government’s witnesses. Specifically, he asserts that

Kornbrath failed to question the police officers about whether

Henderson gave a recorded statement on the night of his arrest.

That line of questioning could have led to information concerning

the location of the Henderson tape.

Scott also asserts that Kornbrath failed to consult with him

and inform him of all alternatives to trial. Specifically,

according to Scott, Kornbrath (1) should have shown him the entire

grand jury transcript instead of just portions of it, and (2) after

the Court denied Scott’s proposed jury instruction on intent,

Kornbrath should have requested a recess to discuss the

ramifications of that decision with Scott.

Kornbrath’s next alleged error is that he failed to adequately

advise Scott of his right to remain silent at trial. Specifically,

Scott believes that the government had not carried its burden of

proof in its case but that, upon advice of counsel, he testified in

his own defense, opening himself up to cross-examination and




10

impeachment. Had he known the full ramifications of taking the

stand, Scott argues, he may have decided differently.

Scott’s final allegation against Kornbrath is that he failed

to appeal all issues in the case, including prosecutorial

misconduct and, instead, only appealed this Court’s adverse

decision on the jury instruction. Scott alleges that Kornbrath’s

ineffectiveness prevent him from preserving his other issues for

appeal.

C. Government’s Response

The government first responds that Kornbrath did not fail to

conduct a reasonable investigation. The government argues that

Scott has provided two different “real” names for “Trapper” under

oath. At trial, Scott testified that Trapper’s real name was Derek

Garrett, but at his § 2255 hearing changed his story and testified

that Trapper’s real name was Derrick Savage. Other than Scott’s

own testimony, the government argues, there is no evidence that

Kornbrath ever received the name Derrick Savage or was informed

before trial that he was incarcerated.

The government further argues that, at trial, Scott stated he

may have left Trapper out of his statements to the police because

Trapper was his cousin and he did not want to get him in trouble.




11

Later, during that same trial testimony, however, Scott changed his

story to indicate that he was almost positive that Trapper’s name

was in one of the two police statements he gave. Then, in his

§ 2255 brief, Scott asserted became that he would have had no

reason at all to withhold Trapper’s real name. From his own

answers at trial, the government argues, Scott had a reason to

withhold Trapper’s real name given that Trapper was his cousin and

he did not want to get Trapper in trouble.

Further, even if Kornbrath had been able to locate Trapper,

and had he testified as Scott predicts, the government contends

there is no proof that this would have changed the outcome of the

trial. Even if Trapper had seen Henderson in possession of the gun

before he got out of the car, the jury could have still found that

Scott had possession of the gun later and tossed it from the car.

Detective Hilliard’s testimony that he saw the gun fly out of the

passenger side window, if credited by the jury, could have led to

the reasonable inference that the person sitting in the passenger

seat, Scott, was the person who threw the gun. In short, the

government argues, a rational jury could have still found Scott

guilty regardless of Trapper’s testimony.




12

Similarly, the government argues that there is no evidence

that Scott ever provided Kornbrath with the information necessary

to find Aaron. Aaron left the car and Scott at Kristin Davis’s

house. Consequently, regardless of the content of Aaron’s

testimony, had he been located, a rational jury could still have

found that Scott later possessed the gun and threw it out of the

passenger side window of the car.

The government next argues that Kornbrath did interview Todd

Turner and attempted to interview Derek Henderson. It points out

that other witnesses to the shooting that night were hard to

locate. Officer Webber testified at trial that he was unable to get

any written statements and could not locate very many witnesses.

Further, even if other witnesses from the shooting had been called

to testify, those witnesses would not have been able to state who

later possessed the firearm in the car because they were not there.

The government argues that Kornbrath’s failure to interview

Kristin Davis was not ineffective because (1) Kornbrath made a

strategic decision that she would not be a helpful witness due to

her statements on the 911 tapes, and (2) Scott admitted that he

doesn’t know whether he even identified her to Kornbrath as a

potential witness. At the § 2255 hearing, Scott also admitted that




13

Davis hated him and would probably have not wanted to testify on

his behalf. Once again, the government points out, Davis also was

not present in the car and the jury could still have found that

Scott later possessed the firearm.

The government next argues that Scott has failed to provide

any evidence that interviews of the government’s witnesses before

trial would have aided the defense in cross-examination or

otherwise. The government points out that Kornbrath did effectively

cross-examine Detective Hilliard about his inconsistent prior

statements. Detective Hilliard had testified on direct examination

that he saw Scott’s arm come out of the window of the vehicle and

throw away the gun. On effective cross-examination, however, he

admitted that he actually only saw fingers and that he could not

identify to whom those fingers belonged. Kornbrath did cross-

examine every government witness except two. One gave testimony in

Scott’s favor and the other merely testified that he had found the

gun. Scott had already admitted that the gun came from the vehicle,

the government argues, so that issue was not in dispute.

The government next argues that Kornbrath did not fail to

investigate the existence of the Henderson tape. The evidence

shows that Kornbrath contacted the government several times




14

inquiring about the tape and that the government, in turn,

contacted both the Clarksburg Police Department and the law

enforcement agents involved in detaining Henderson. The information

from all these sources indicated that the tape never existed. The

government argues that Kornbrath was not reasonably obligated to go

further in requesting the police file or by filing a motion to

compel.

Furthermore, the government argues that Kornbrath went above

and beyond his duty post-conviction by having his investigator,

Sharon Callis, talk to Detective Wygal and the ATF about whether

they were able to find a tape-recorded statement from Henderson.

After pulling the file, there was, once again, no evidence that it

ever existed.

The government also argues that, even if the Henderson tape

had existed, there is no evidence that it would have changed the

outcome of the trial. According to Scott, the tape would have

contained a statement by Henderson that he gave the gun to Scott.

This information would not have been helpful to Scott’s defense.

Rather, it would have bolstered the government’s case that Scott

possessed the firearm.




15

The government next argues that Kornbrath did not fail to

adequately cross-examine witnesses. He asked Henderson about what

happened after he was arrested. Nowhere in Henderson’s testimony,

however, does he mention a recorded statement. The government

argues that, even if Kornbrath had questioned Henderson about a

recorded statement, and even if Henderson had admitted that a tape

existed, it was unlikely that Henderson would have changed his

story to admit that it was he, not Scott, who had thrown the gun

from the car.

The government also asserts that Kornbrath did consult with

Scott and inform him of all alternatives. According to Kornbrath’s

records, including time sheets, on March 31, 2004, he sent Scott

copies of all discovery, except for criminal records and grand jury

transcripts, as well as a copy of the applicable Federal Sentencing

Guidelines. He did not send Scott the grand jury transcripts

because he is not allowed to do so. Nor did he send Scott the

criminal records because they were not relevant. Kornbrath also

testified that, as reflected on his time sheets, he had the entire

file with him each time he met with Scott and that he reviewed all

the materials with Scott for seven hours. Scott also met with

Kornbrath’s investigator for approximately two hours.




16

The government argues that Kornbrath did not move for a recess

after the Court denied his request for a jury instruction because

there was no need to do so. According to the testimony at the

§ 2255 hearing, Scott had already informed Kornbrath that he would

not accept a plea bargain of 15 years. He wanted a lower sentence

but the government was never willing to offer anything below 15

years. Hence, the government asserts, there would have been

nothing to discuss at a recess.

The government also asserts that Kornbrath’s strategic

decision to base his defense on lack of dominion and control,

rather than temporary insanity or some other defense, was

reasonable. Upon his review of the evidence, Kornbrath did not

believe that Scott had any other viable defenses. That Scott now

wishes he had pled, the government argues, is irrelevant.

The government next defends Kornbrath’s decision to advise

Scott to testify. At the § 2255 hearing, Kornbrath testified that

he advised Scott to take the stand because his defense strategy was

to show that Scott did not intend to exercise dominion and control

over the weapon. Scott’s testimony was crucial to show Scott’s

thought processes to the jury in order to convince them that he

lacked the mens rea to commit the crime. Had Scott not taken the




17

stand, the government points out, Scott would have had no testimony

at all contradicting the testimony of the government’s witnesses.

Furthermore, the government argues, Scott has failed to show that,

had he not taken the stand, the outcome of the trial would have

been different.

Finally, the government contends that Kornbrath did not fail

to file a proper appeal. Specifically, Kornbrath appealed this

Court’s refusal to give his proffered jury instruction on intent,

and that decision was affirmed by the Fourth Circuit. Also,

Kornbrath testified at the § 2255 hearing that the only other

ground for appeal that Scott indicated to him was that Henderson

was lying. Given the Fourth Circuit case law in this area, the

government argues, it would have been a futile and herculean task

to appeal a jury’s verdict based upon a credibility argument.

Consequently, it was reasonable for Kornbrath to focus his appeal

on the only legal issue he or Scott had identified that held a

reasonable prospect of success: this Court’s order on the jury

instruction. Because Scott cannot establish by some evidence that

he directed Kornbrath to file an appeal on the basis of

prosecutorial misconduct, the government argues, Kornbrath acted

properly.




18

In summary, the government argues that most of Scott’s claims

are based on information Scott failed to give Kornbrath until after

trial, that Kornbrath acted reasonably with the information he did

have at the time, and that Scott’s evolving and self-contradictory

stories strip him of any credibility. With the great deference

that Strickland counsels, therefore, the government contends that

Kornbrath rendered effective assistance of counsel to Scott.

D. Scott’s reply

Scott replies by first disputing the government’s claim that

Kornbrath did not know Trapper’s real name. Scott argues that

Kornbrath learned Trapper’s real name, Derek Garrett, if at no

earlier time, at least at trial.

Scott also argues that this Court should take a broader view

when considering the potential effect the witnesses whom Kornbrath

failed to call could have had on the trial. When the purported

testimony of Trapper, Aaron, Todd Turner, Davis and other

undiscovered witnesses is combined, Scott argues, these witnesses

could have easily changed the outcome by placing the gun in

Henderson’s hands. Scott also reiterates that Kornbrath failed to

properly cross-examine Henderson because he failed to specifically

ask him about the Henderson tape.




19

Finally, Scott argues that Kornbrath should have asked for a

recess after losing the battle on the jury instruction in order to

inform Scott about the current outlook of the case. Scott implies

that, had Kornbrath informed him of the dire state of the case at

that time, he might have taken the 15 year deal or asked for a

continuance to form another defense.

E. Analysis

The Court views all of Scott’s claims through the lens of

Strickland v. Washington, 466 U.S. 668 (1984). The parties have

agreed on the appropriate legal standard and that it is a

formidable one for Scott. Scott argues that he has met that

standard. After examining each of Scott’s claims, however, the

Court agrees with the government that Scott has failed to carry his

burden to show both that Kornbrath’s performance was

constitutionally deficient and that the alleged errors prejudiced

him to the point that there is a reasonable probability that the

outcome of the trial would have been different without those

errors. The Court will address each of Scott’s claims seriatim.

The claim that Kornbrath failed to conduct a reasonable

investigation because he failed to located Trapper and Aaron fails

under the weight of Scott’s own testimony. As the government




20

points out, Scott, under oath, provided two different “real” names

for “Trapper.” At trial, he testified that Trapper’s real name was

Derek Garrett, while at his § 2255 hearing he changed his story to

indicate Trapper’s real name actually was Derrick Savage.

Apparently not even Scott can remember Trapper’s real name.

Furthermore, Scott claimed that Trapper was his cousin, yet he

apparently cannot accurately remember his name. Given these

obvious contradictions in Scott’s sworn testimony, the Court finds

that his claim that he gave Kornbrath Trapper’s real name before

the trial lacks credibility. Given the limited information

Kornbrath had on Trapper at the time of the trial, the Court finds

that it was reasonable for him to proceed as he did.

In the case of Aaron, Kornbrath’s actions are even more

reasonable. To this day, no one, not even Scott, knows Aaron’s

real name. Kornbrath reasonably decided to concentrate his time

and resources on shoring up Scott’s defense instead of chasing down

blind alleys for persons known only by street names.

Furthermore, even if Kornbrath had acted in a constitutionally

deficient manner, Scott has failed to show a reasonable probability

that Trapper’s and Aaron’s testimony would have changed the outcome

of the trial. Scott admits that, at most, Trapper and Aaron only




21

saw Henderson in possession of the firearm before they exited the

vehicle. They were not in the vehicle during the chase when the

gun was thrown out the window. A reasonable jury could have still

found beyond a reasonable doubt that Scott took possession of the

gun at some point between the time when Trapper and Aaron left the

car and when the gun was thrown out.

As to Scott’s claim that Kornbrath failed to interview other

witnesses to the shooting, the evidence shows that the police had

difficulty finding witnesses that night and that they were

unsuccessful in getting any written statements. Scott has not

identified these potential witnesses because he never found them.

Furthermore, even if Kornbrath had been able to find and call other

witnesses from the shooting, none would have been able to testify

as to whether Scott possessed the gun later in the car because they

were not there. Consequently, the Court finds that Kornbrath acted

reasonably in his decision not to continue searching for witnesses

of the shooting. Furthermore, even if Kornbrath’s decision had

been constitutionally defective, Scott has failed to show a

reasonable probability that these witnesses would have changed the

outcome of the trial.




22

As to Scott’s claim that Kornbrath was ineffective when he

failed to interview Davis, Scott’s own testimony defeats his claim.

At the § 2255 hearing, Scott admitted that he does not recall

whether he even gave Davis’s name to Kornbrath prior to trial. It

is certainly reasonable that an attorney could not pursue a witness

whom his client has failed to disclose. Furthermore, the Court

finds that Kornbrath testified credibly that he had examined

Davis’s statements on the 911 tapes and, based on those tapes, had

made a strategic decision that she would not be a helpful witness.

Thus, the Court finds that Kornbrath acted reasonably in his

decision not to pursue Davis as a witness.

Furthermore, even if Kornbrath’s decision had been

constitutionally deficient, Scott has failed to show a reasonable

probability that Davis’s testimony would have changed the outcome

of the trial. At the § 2255 hearing, Scott admitted that Davis

hated him and probably would not have testified on his behalf.

Moreover, Davis was not present in the vehicle. Thus, even with her

testimony, a reasonable jury could still have found beyond a

reasonable doubt that Scott possessed the firearm.

As to Scott’s assertion that Kornbrath ineffectively failed to

interview the government’s witnesses before trial, he has not




23

provided any evidence that interviews of the government’s witnesses

before trial would have aided the defense in cross-examination or

otherwise. As the government contended in its brief, Kornbrath

mounted very effective cross-examine of Detective Hilliard. Due to

that skilled cross-examination, Detective Hilliard eventually

admitted that his earlier statement that he had seen Scott’s arm

throw the gun was incorrect. He admitted, instead, that he only

saw fingers and that he could not positively identify whose

fingers. This admission was damaging to the government and

supported Scott’s defense that Henderson, not Scott, had possessed

the firearm and thrown it out the car window. After careful

examination of the record, the Court finds that Kornbrath used the

tool of cross-examination skillfully to undermine Hilliard’s

testimony as well as the testimony of other government witnesses.

Part of the art of cross-examination is not only knowing which

questions to ask but also which questions not to ask, and when to

not ask any questions at all. The only two government witnesses

Kornbrath did not cross examine were witnesses who were testifying

to things that the defense was not disputing. Consequently, the

Court finds that Kornbrath acted effectively and decisively in his

cross-examination strategy. Furthermore, even had Kornbrath’s




24

performance been constitutionally deficient, Scott has not shown to

a reasonable probability that prior interviews with government

witnesses or a trial tactic of subjecting all of the government’s

witnesses to cross-examination would have changed the outcome of

the trial.

As to the Henderson tape, the Court finds, by a preponderance

of the evidence, that the tape never existed. The only evidence

that it existed is found in Scott’s uncorroborated testimony that

he heard it at the Clarksburg Police Department. Kornbrath, the

government, and the police have all engaged in an extensive search

for this tape to no avail. There is no one, other than Scott, not

even Henderson himself, who recalls the existence of the tape.

Consequently, all of Scott’s claims premised upon the existence of

the Henderson tape fail. Kornbrath acted reasonably and

effectively under the circumstances. Furthermore, even if the

Henderson tape did exist, Scott admits that it would have contained

a statement from Henderson saying that Scott threw the gun.

Consequently, Scott has not established by a reasonable probability

that the outcome of the trial would have been different had the

tape been found.




25

As to Scott’s claim that Kornbrath was ineffective because he

failed to consult with Scott and inform him of all alternatives to

trial, the Court finds Kornbrath’s testimony, supported by his

business records, establishes that he did so advise Scott.

According to the records, Kornbrath sent Scott copies of all

discovery, minus criminal records and grand jury transcripts, and

a copy of the applicable Federal Sentencing Guidelines on March 31,

2004. Furthermore, Kornbrath met with Scott for seven hours, and

his investigator met with Scott for an additional two hours.

Kornbrath testified that he had the entire file with him when he

met with Scott and that he went over all the documents with him.

The Court finds this account, which is supported by time sheets and

other business records, more credible than Scott’s bare assertion

that Kornbrath did not meet with him sufficiently. The Court also

finds that Kornbrath’s decision to not request a recess after

losing on a jury instruction issue was reasonable. The Court finds

credible Kornbrath’s testimony that Scott had already informed him

that the government’s proposed plea to a sentence of 15 years was

unacceptable. The government was not likely to offer a better deal

after winning a substantial and strategic victory on a key jury

instruction. Consequently, the Court finds that Kornbrath acted




26

effectively and reasonably under the circumstances. Furthermore,

even had Kornbrath acted in a constitutionally deficient manner,

Scott has failed to show a reasonable probability that more time in

consultation would have resulted in a different outcome at trial.

As to Scott’s claim that it was ineffective for Kornbrath to

base Scott’s defense on lack of dominion and control, rather than

temporary insanity or some other defense, Kornbrath’s testimony

about this issue also was credible. At the § 2255 hearing,

Kornbrath testified that he did not believe Scott had any other

viable defenses and so pursued the defense that, in his

professional judgment, provided Scott a chance of success. After

reviewing the record, the Court finds that Kornbrath’s estimation

under the circumstances was reasonable and effective. Furthermore,

even if Kornbrath’s exercise of judgment was constitutionally

deficient, Scott has failed to show a reasonable probability that

the assertion of another defense would have resulted in a different

trial outcome.

As to Scott’s claim that Kornbrath acted ineffectively when he

advised Scott to testify, the Court finds that argument meritless.

Kornbrath was advancing a defense theory that Henderson, not Scott,

possessed the firearm and had thrown it out the car window. Part




27

of that strategy was to show that Scott had not intended to

exercise dominion and control over the weapon. The success of the

defense hinged on whether the jury believed that Scott lacked the

requisite mens rea. The only person who could have testified about

what Scott was thinking at the time was Scott. Under these

circumstances, given the theory of defense, it was reasonable and

effective for Kornbrath to advise Scott to testify. Furthermore,

even if Kornbrath’s advice was constitutionally deficient, Scott

has failed to show a reasonable probability that a failure to

testify would have altered the outcome of the trial.

As to Scott’s final ineffective assistance of counsel claim,

that Kornbrath failed to file a proper appeal, the Court again

finds that Kornbrath acted properly. Kornbrath did appeal this

Court’s decision denying Scott’s jury instruction regarding intent

and that decision was affirmed by the Fourth Circuit. The Court

finds that Kornbrath’s testimony at the § 2255 hearing, that the

only other ground for appeal that Scott indicated to him was that

Henderson was lying, was credible and that Scott’s conflicting

testimony was not credible. Given his years of experience,

Kornbrath knew the very slim likelihood that an argument attacking

witness credibility in the face of a jury verdict, would prevail




28

under current Fourth Circuit case law. The Court agrees with

Kornbrath and the government that such an argument would have been

futile. Consequently, it was reasonable and effective for

Kornbrath to focus his appeal on the only legal issue that either

he or Scott had identified as having a reasonable prospect of

success: this Court’s order denying the defendant’s proffered jury

instruction on intent.

III. Prosecutorial Misconduct

A. Standard of Law

For a petitioner to prevail on a prosecutorial misconduct due

process claim, he must show (1) that the prosecutor's conduct was

improper, and (2) that this misconduct prejudicially affected his

substantial rights. United States v. Kennedy, 372 F.3d 686, 696

(4th Cir. 2004). “Where a defendant has procedurally defaulted a

claim by failing to raise it on direct review, the claim may be

raised in habeas only if the defendant can first demonstrate either

`cause’ and actual ̀ prejudice,’ or that he is ‘actually innocent’.”

Bousley v. United States, 523 U.S. 614, 622 (1998).

B. Scott’s arguments

Scott’s allegation of prosecutorial misconduct is based on the

government’s alleged withholding of exculpatory evidence,




29

specifically the Henderson tape. By refusing to turn over the tape

upon kornbrath’s specific request and denying the tape’s existence,

Scott alleges, the government withheld valuable exculpatory

evidence from the defense.

Scott also argues that the government misled the jury in its

opening statement. Specifically, he contends that the government

stated the jury would hear testimony from a police officer that he

saw Scott throw the gun out the window of the car. Later, Officer

Hilliard testified that he saw an arm come out of the passenger

side window of the vehicle. Upon cross-examination, he admitted

that he had actually only seen fingers and that he could not be

certain those fingers belonged to Scott. Scott believes the

government’s allegedly misleading statements prejudiced the jury

against him.

C. Government’s response

The government responds to Scott’s argument by first

reminding the Court of the narrow review accorded to habeas claims

not raised on direct appeal. Consequently, the government first

argues that Scott has waived his prosecutorial misconduct claims by

failing to raise them on direct appeal.




30

Furthermore, the government argues that, even if Scott’s

claims are not waived, there is still no evidence, except for

Scott’s unreliable statements, that the Henderson tape ever

existed. Consequently, the government could not have failed to

turn over the tape because it never existed. Furthermore, had the

tape existed and the government failed to provide it, the

government argues, Scott has still failed to show that the tape

would have affected the outcome of his trial.

The government argues that it did not mislead the jury in its

opening statement. In that statement, the government stated it

would call a police officer who would testify that he saw Scott

throw the gun out of the car window. Detective Hilliard testified

that he saw a gun thrown out of the car from the passenger side

where Scott was sitting. From this statement, and the admissions

elicited by Kornbrath on cross-examination, the jury had to decide

whether to draw the inference that Scott was the person who had

thrown the gun away. The government argues that Scott has failed

to show that he was prejudiced by its opening statement.

In summary, the government argues that Scott cannot show

actual prejudice or actual innocence and this Court should deny his

motion on the grounds of prosecutorial misconduct.




31

D. Scott’s reply

In his reply, Scott argues that the government’s response

actually supports his argument that the government’s opening

statement mislead the jury. He points out that the government

admits it told the jury that a the police officer saw Scott throw

the gun when actually the officer only saw the fingers of someone

throwing the gun and could not identify that individual.

E. Analysis

It is undisputed that Scott failed to assert any prosecutorial

misconduct claims on direct appeal. Consequently, the Court views

Scott’s claims through the lens of Bousley v. United States, 523

U.S. 614 (1998). In order to prevail, Scott must demonstrate

cause and actual prejudice, or that he is actually innocent. Id.

at 622. After a careful review of the record, the Court agrees

with the government that Scott has failed to carry this heavy

burden.

As the Court has already found by a preponderance of the

evidence that the Henderson tape never existed, the government did

not commit prosecutorial misconduct when it failed to turn over a

tape that never existed. As to Scott’s argument about the prejudice

he suffered due to the government’s opening statement, the Court




32

finds that the government did not mislead the jury. In its opening

statement, the government stated it would present a police officer

who would testify that he saw Scott throw the gun out of the car.

On direct, Detective Hilliard did testify in accord with that

representation. Kornbrath, however, then impeached Hilliard with

an effective and skilled cross-examination that caused Hilliard to

admit he had only seen fingers and could not identify Scott as the

thrower. This chain of events does not establish that the

government mislead the jury, but rather demonstrated that Kornbrath

is an excellent defense attorney. Because the government acted

properly, Scott has failed to demonstrate cause and actual

prejudice, or that he is actually innocent. Consequently, the

Court dismisses the claim.

IV. Conclusion

For the reasons stated above, the Court DENIES Scott’s

petition (civil dkt. no. 1; criminal dkt. no. 60), DENIES Scott’s

other pending motion AS MOOT (civil dkt. no. 44; criminal dkt. no.

100), and DISMISSES this case WITH PREJUDICE. The Clerk is ordered

to STRIKE this case from the Court’s docket.

It is so ORDERED.




33

The Clerk is directed to transmit copies of this Order to

counsel of record.

DATED: August 27, 2008.

/s/ Irene M. Keeley IRENE M. KEELEYUNITED STATES DISTRICT JUDGE


IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF WEST VIRGINIA

BENJAMIN F. SCOTT,Defendant-Petitioner

v. CRIMINAL NO. 1:02CR27

UNITED STATES OF AMERICA ,Plaintiff-Respondent

DEFENDANT’S MOTION TO VACATE SENTENCEPURSUANT TO 28 U.S.C. §2255

Comes now, the defendant, Benjamin F. Scott, through his counsel, Brian J. Kornbrath,

Federal Public Defender for the Northern District of West Virginia, moving this Court, pursuant

to 28 U.S.C. §2255, to vacate his sentence in the above-captioned case and resentence in the

manner described below.

This motion is not opposed by the government.

In support of the instant motion, the defendant relies upon the following grounds:

1. On May 8, 2002, a grand jury returned a one count indictment charging Mr. Scott with

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A § 922(g)(1)

violation normally carries a statutory maximum ten year term of imprisonment. 18 U.S.C. §

924(a)(2). The government, however, alleged three prior convictions in the indictment and

noticed it would seek a sentencing enhancement under the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e). The government alleged Mr. Scott had three convictions that qualified as

ACCA predicates: a West Virginia burglary conviction; a West Virginia wanton endangerment

with a firearm conviction; and a New Jersey aggravated sexual assault and endangering the

welfare of a child conviction.


2. Mr. Scott proceeded to trial and was convicted by a jury April 27, 2004.

3. On August 5, 2004, the district court sentenced the defendant under the ACCA and

imposed a 260 month sentence.

4. In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2251 (2015), the Supreme Court

held that imposing an increased sentence under the residual clause of the ACCA violates the

Constitution’s guarantee of due process as it is “unconstitutionally vague.” The residual clause

of 18 U.S.C. § 924(e)(2)(B)(ii) deemed a prior conviction a “violent felony” if it “otherwise

involves conduct that presents a serious risk of physical injury to another.”

5. The parties agree that at least one of defendant’s three predicate convictions as alleged

in the indictment against him are only deemed a “violent felony” under the ACCA only because

of reliance on the “residual clause” of § 924(e) since ruled unconstitutional in Johnson. This

include the West Virginia wanton endangerment with a firearm conviction. The New Jersey

aggravated sexual assault conviction may be invalid as well as the elements involve the age of

the victim rather than use of force.

6. Under 28 U.S.C. § 2255(a), a defendant is entitled to a resentencing when his original

sentence “was in excess of the maximum authorized by law” or “was imposed in violation of the

Constitution or laws of the United States.” The parties contend that Mr. Scott is now entitled to

relief on both grounds given he lacks three qualifying predicate convictions that support armed

career criminal status. This reduces the statutory maximum sentence from not less than 15 years

to more than life, to not more than ten years. See: United States v. Newbold, 791 F.3d 455 (4th

Cir. 2015)(holding that movant entitled to 2255 relief where original ACCA sentence rendered

invalid by subsequent change of law, explaining that change that reduces defendant’s statutory

maximum sentence below the imposed sentence has long been cognizable on collateral review).


7. When the Supreme Court announces a new rule, “a person whose conviction is already

final may not benefit from the decision in a habeas or similar proceeding,” Chaidez v. United

States, 568 U.S. ___, 133 S.Ct. 1103, 1107 (2013), with two exceptions. First, “[n]ew

substantive rules generally apply retroactively” on collateral review, including “decisions that

narrow the scope of a criminal statute by interpreting its terms” and “constitutional

determinations that place particular conduct or persons covered by the statute beyond the State’s

power to punish.” Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004). The parties contend the

holding in Johnson satisfies these requirements.

8. Mr. Scott has now served more than the ten year sentence authorized for his offense of

conviction pursuant to 18 U.S.C. § 922(g)(1) and § 924(a)(2).

WHEREFORE, based on the foregoing, the parties ask this Court to immediately vacate

Mr. Scott’s now-unlawful ACCA sentence and sentence him to time served.

Respectfully submitted,

BENJAMIN F. SCOTT

Defendant-Petitioner




CERTIFICATION OF SERVICE

I hereby certify that on ____________ __, 2015, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

the following:

Randolph J. Bernard, Esq.Office of the United States AttorneyP.O. Box 591Wheeling, West Virginia 26003(304) 234-0100




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