United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon United States District Judge
Hagi Scott is currently incarcerated in the Federal
Correctional Institution located in Greenville, Illinois
(“FCI-Greenville”). Scott filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, in
order to challenge his conviction and sentence in United
States v. Scott, Case No. 10-cr-496-JCH-TCM (E.D. Mo.
2010) (“criminal case”).
matter is now before the Court for preliminary review of the
habeas petition. Rule 4 of the Federal Rules Governing
Section 2254 Cases in United States District Courts provides
that upon preliminary consideration by the district judge,
“[i]f it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court, the judge shall
make an order for its summary dismissal and cause the
petitioner to be notified.” Rule 1(b) of those Rules
gives this Court the authority to apply the rules to other
habeas corpus cases.
September 23, 2010, Scott was charged with knowingly or
intentionally distributing a mixture or substance containing
heroin that resulted in the death of another in violation of
21 U.S.C. §§ 841(a) and (b)(1)(C) (Count 1),
knowingly or intentionally distributing a mixture or
substance containing heroin in violation of 21 U.S.C. §
841(a) (Count 2), and knowingly or intentionally distributing
a mixture or substance containing cocaine base (crack
cocaine) in violation of 21 U.S.C. § 841(a) (Count
(Doc. 1-1, p. 2). On January 19, 2011, Scott entered into a
written plea agreement in which he agreed to plead guilty to
Count 1. (Doc. 28, criminal case; Doc. 1-2, pp. 4-14). In
exchange, the government agreed to dismiss the remaining
counts of the indictment at the time of sentencing.
Id. On April 21, 2011, Scott received a sentence of
240 months and 36 months of supervised release following his
entry of a guilty plea as to Count 1. (Doc. 39, criminal
case). The government dismissed all other counts against him.
Id. Judgment was entered the same day. Id.
Scott did not file a direct appeal.
September 2, 2014, Scott filed a Motion to Vacate, Set Aside,
or Correct Sentence under 28 U.S.C. § 2255. Scott v.
United States, Case No. 14-cv-1512-JCH (E.D. Mo. 2014)
(“§ 2255 Motion”). (Doc. 1-1, p. 2). He
challenged his conviction and sentence based on the United
States Supreme Court's decision in Burrage v. United
States, -- U.S. --, 134 S.Ct. 881, 887 (2014). At issue
in Burrage was whether a defendant may be sentenced
under the enhanced penalty provision in § 841(b)(1)(C),
which results in the imposition of a 20-year mandatory
minimum sentence when death “results from” the
use of the unlawfully distributed drug, if the use of the
drug “contributes to, but is not a but-for cause of,
the victim's death.” Burrage, 134 S.Ct. at
885. The Supreme Court held that “but for”
causation is required. Id. at 892. The “death
results” enhancement has two elements: (1) knowing or
intentional distribution of the controlled substance under
§ 841(a)(1); and (2) death resulting from the use of the
drug under § 841(b)(1)(C). Id. at 887. Scott
argued that the “death results” enhancement no
longer applied to him under Burrage. (Doc. 1, p. 4).
United States District Court for the Eastern District of
Missouri denied the § 2255 Motion on May 23, 2016.
Id. The District Court reasoned that Scott waived
the right to bring a collateral attack in his written plea
agreement. That aside, even if Burrage
announced a new rule of law made retroactively applicable to
cases on collateral review, Scott's challenge also lacked
merit. (Doc. 1-1, p. 2). The District Court denied the §
2255 Motion and declined to issue a certificate of
nevertheless filed an application for a certificate of
appealability with the Eighth Circuit Court of Appeals.
See Scott v. United States, App. No. 16-3051 (8th
Cir. 2016). The Eighth Circuit denied his application and
dismissed the appeal on January 18, 2017. (Doc. 1, p. 4). The
instant habeas petition followed. (Doc. 1, 1-1).
now challenges his conviction and sentence under the penalty
enhancement provision, referred to herein as the “death
results” enhancement, of the Controlled Substances Act.
(Doc. 1, pp. 4, 6). The “death results”
enhancement is applicable where death or serious bodily
injury results from the use of a distributed substance.
See Burrage v. United States, -- U.S. --, 134 S.Ct.
881 (Jan, 27, 2014). Scott contends that Burrage
requires the government to prove beyond a reasonable doubt
that his “knowing or intentional” distribution of
heroin was the “but for” cause of death of the
victim at issue. (Doc. 1, p. 6). At the time he entered into
a written plea agreement in his criminal case, the government
was only required to prove that the distribution of heroin
was a contributing factor in the death of another.
Id. Scott maintains that heroin was merely a
“contributing factor” and not the “but
for” cause of the death at issue in his underlying
criminal case. Id. Therefore, the death results
enhancement no longer applied to his sentence. Id.
to Scott, the remedy under 28 U.S.C. § 2255 is
inadequate or ineffective to challenge his conviction and
sentence because Burrage is a statutory
interpretation case that was decided after the time expired
for filing a collateral attack under § 2255. (Doc. 1, p.
4). He asks this Court to grant his Petition, vacate his
sentence, and resentence him without the “death
results” enhancement under 21 U.S.C. §
841(b)(1)(C). (Doc. 1, p. 8).
a federally convicted person may challenge his conviction and
sentence by bringing a motion pursuant to 28 U.S.C. §
2255 in the court that sentenced him. Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012); Hill v.
Werlinger, 695 F.3d 644, 645 (7th Cir. 2012); Kramer
v. Olson, 347 F.3d 214, 217 (7th Cir. 2003); Walker
v. O'Brien, 216 F.3d 626, 629 (7th Cir. 2000). A
§ 2255 motion is ordinarily the “exclusive means
for a federal prisoner to attack his conviction.”
Kramer, 347 F.3d at 217. However, § 2255
generally limits a prisoner to one challenge of his
conviction and sentence.
prisoner may not file a “second or successive”
motion unless a panel of the appropriate court of appeals
certifies that such motion contains either: (1) newly
discovered evidence “sufficient to establish by clear
and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense;” or (2)
“a new rule of constitutional law, made retroactive to