United States District Court, S.D. Ohio, Eastern Division
ANTHONY D. SCOTT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Elizabeth A. Preston Deavers Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. CHIEF JUDGE.
February 12, 2018, the Magistrate Judge issued a Report
and Recommendation recommending that the Motion to
Vacate under 28 U.S.C. § 2255 (ECF No. 64) be
dismissed. On March 9, 2018, the Court issued an
Order adopting and affirming the Magistrate
Judge's Report and Recommendation. (ECF No. 79.)
Thereafter, on March 5, 2018, the Petitioner filed a
Motion for the Court to Take Judicial Notice and
Objection to the Magistrate Judge's Report
and Recommendation. (ECF Nos. 80, 81.) The docket
reflects that the Clerk received the foregoing documents for
filing on March 9, 2018, and docketed them on March 12, 2018;
however, Petitioner apparently sent them to the United States
Court of Appeals for the Sixth Circuit for filing on March 5,
2018. (See ECF Nos. 80-1, 2; 81-1, 2.)
the Court VACATES the final Order
of dismissal of this action (ECF No. 79) for consideration of
Petitioner's Motion for the Court to Take Judicial
Notice and Objection (ECF No. 80, 81) to the
Magistrate Judge's Report and Recommendation.
to 28 U.S.C. § 636(b), this Court has conducted a de
novo review. Upon review of the record, and for the
reasons that follow, Petitioner's Motion for the
Court to Take Judicial Notice (ECF No. 80) is
DENIED. Petitioner's Objection
(ECF No. 81) is OVERRULED. The Report
and Recommendation (ECF No. 78) is
ADOPTED and AFFIRMED. The
Motion to Vacate under 28 U.S.C. § 2255 (ECF
No. 64) is DISMISSED. The Court
DECLINES to issue a certificate of
February 20, 2014, Petitioner pleaded guilty pursuant to the
terms of his negotiated Plea Agreement to one count
of possession with intent to distribute heroin, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C). (ECF No. 37.) On
May 29, 2014, the Court imposed 240 months imprisonment, to
be followed by six years of supervised release. (ECF No. 45.)
The United States Court of Appeals for the Sixth Circuit has
affirmed the Judgment of this Court. (ECF No. 58.)
The Supreme Court denied the petition for a writ of
certiorari. (ECF No. 61.) Petitioner asserts that
his recommended sentence under the advisory United States
Sentencing Guidelines was incorrectly calculated in view
of Molina-Martinez v. United States, __U.S.__, 136
S.Ct. 1338 (2016) (claim one); and that he was denied the
effective assistance of counsel, because his attorney told
him that his recommended sentence would not be enhanced based
on the death of Robert Ruffing if he entered a guilty plea
(claim two). The Magistrate Judge recommended dismissal of
these claims as waived or without merit.
now contends that he was denied due process and the right to
confront the witnesses against him due to the improper
admission of a laboratory report that was used to establish
that he provided the heroin that caused Ruffing's death.
According to Petitioner, the government never established
that the heroin Ruffing obtained from Petitioner actually
caused Ruffing's death. Petitioner requests that the
Court to take judicial notice of the foregoing arguments.
Additionally, he objects to the Magistrate Judge's
recommendation of dismissal of this action. He maintains that
he did not waive his right to challenge the enhancement of
his recommended guideline sentence based on Ruffing's
death, and that this claim warrants review in view of an
intervening change in the law. He further asserts that he
would not have pleaded guilty, had he known that his
recommended guideline sentence would be enhanced based on
Ruffing's death. Petitioner refers to the Supreme
Court's recent decisions in Class v. United States,
__U.S.__, 138 S.Ct. 798 (2018), and Lee v. United
States, __U.S.__, 137 S.Ct. 1958 (2017), in support of
his claims. He seeks an evidentiary hearing.
Rule 201 of the Federal Rules of Evidence, a district court
may take judicial notice at any stage of the proceeding,
whether or not requested by the parties, of any fact
"not subject to reasonable dispute because it: (1) is
generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned." Rule 201, Federal Rules of Evidence.
"[J]udicial notice is available only for
'adjudicative facts, ' or the 'facts of the
particular case, ' as opposed to ... facts 'which
have relevance to legal reasoning' .... Thus, judicial
notice is generally not the appropriate means to establish
the legal principles governing the case." Wingeart
v. Warren, No. 05-74144, 2011 WL 1085032, at *1 (E.D.
Mich. March 23, 2011) (quoting Toth v. Grand Trunk
R.R., 306 F.3d 335, 350 (6th Cir. 2002)).
"[F]ederal courts may take judicial notice of
proceedings in other courts of record" and of judicial
decisions. Id. (citing Granader v. Public
Bank, 417 F.2d 75, 82 (6th Cir. 1969); United States
v. Doss, 563 F.2d 265, 269 n. 2 (6th Cir. 1977); Don
Lee Distributor, Inc. v. NLRB, 145 F.3d 834, 841 n.5
(6th Cir. 1998)); see also In re Montanari, No.
12-33189, 2015 WL 603874, at *1 n.3 (E.D. Tenn. Feb. 12,
2015) (taking judicial notice of the undisputed facts and
documents of record in the defendants' bankruptcy case).
"The purpose of judicial notice is to make a court's
acceptance of a well-known or undisputable fact more
convenient." Wingeart, 2011 WL 1085032, at *1
(citing United States v. Bari, 599 F.3d 176, 180
(2nd Cir. 2010)).
the record does not reflect that judicial notice of the
issues requested by Petitioner would be appropriate. The
Sixth Circuit held that Petitioner waived his right to
challenge the enhancement of his recommended guideline
sentence based on Ruffing's death under the explicit
terms of his negotiated Plea Agreement. (See ECF No.
58, PageID# 198-201.) Thus, Petitioner's argument that
the government failed to establish that he provided Ruffing
with the heroin that caused Ruffing's death does not
assist him and does not involve an undisputed fact. Further,
and to the extent that Petitioner seeks to raise a new claim
under the Confrontation Clause, he may not do so at this late
juncture of the proceedings. Notably, the one-year statute of
limitations provided for under 28 U.S.C. § 2255(f) has
long since expired, and bars amendment of the § 2255
petition with new claims that do not "relate back,
" or arise from the same "common core of operative
facts" to claims raised in the initial timely-filed
§ 2255 petition. See Mayle v. Felix, 545 U.S.
644, 650, 664 (2005) ("An amended habeas petition . . .
does not relate back (and thereby escape AEDPA's one-year
time limit) when it asserts a new ground for relief supported
by facts that differ in both time and type from those the
original pleading[.]") Therefore, Petitioner's
Motion for the Court to Take Judicial Notice (ECF
No. 80) is DENIED.
as discussed by the Magistrate Judge, nothing in
Molina-Martinez, 136 S.Ct. at 1338, or any of the
other cases referred to by the Petitioner, warrant this
Court's reconsideration of the Sixth Circuit's
conclusion that Petitioner waived his claim regarding the
enhancement of his sentence under the advisory sentencing
guidelines based on Ruffing's death. In Class,
138 S.Ct. at 801-802, referred to by the Petitioner, the
Supreme Court held that a guilty plea, by itself, does not
bar a criminal defendant from later appealing his conviction
on the ground that the statute of conviction violates the
Constitution. Id. In Lee, 137 S.Ct. at
1958, also referred to by the Petitioner, the Supreme Court
considered whether a petitioner could establish prejudice
from his attorney's erroneous advise that he would not be
deported by entry of his guilty plea, and in so doing
rejected the argument that it should adopt a "per se
rule that a defendant with no viable defense cannot show
prejudice." Id. at 1966. The Supreme Court
Courts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded
but for his attorney's deficiencies. Judges should
instead look to contemporaneous evidence to substantiate a
defendant's expressed preferences.
Id. at 1967. However, neither of the foregoing cases
assist the Petitioner. The record reflects that Petitioner
knowingly, intelligently, and voluntarily, entered a guilty
plea, whereby he explicitly agreed that his recommended
sentence would be enhanced because the death of an individual
had resulted from the use of the heroin he distributed.
Plea Agreement (ECF No. 34, PageID# 146.) In the
same plea agreement, the defendant avoided a potential
sentence of life imprisonment and a consecutive additional
five year gun sentence under 18 U.S.C. § 924(c).
Petitioner has failed to establish the denial of the
effective assistance of counsel.
these reasons and for the reasons detailed in the Magistrate
Judge's Report and Recommendation,
Petitioner's Objection (ECF No. 81) is
OVERRULED. The Report and
Recommendation (ECF No. 78) is ADOPTED
and AFFIRMED. The Motion to Vacate
under 28 U.S.C. § 2255 (ECF No. 64) is
to 28 U.S.C. § 2253(c)(1)(B), the Court must also assess
whether to issue a certificate of appealability. Rule 11 of
the Rules Governing Section 2255 Proceedings for the United
States District Courts states that "[f]he district court
must issue or deny a certificate ...