Scott v. Beasley

          PROPOSED FINDINGS AND RECOMMENDATIONS

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Court Judge James M. Moody, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

         If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

         Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         DISPOSITION

         This matter is before the undersigned United States Magistrate Judge on the petition of federal prisoner Christopher Scott for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Docket Entry #2) For the reasons that follow, the undersigned recommends that the petition be summarily dismissed without prejudice for lack of jurisdiction.

         Procedural History

         Scott's federal sentence derives from a 1992 conviction out of the United States District Court for the District of Nebraska where he was found guilty of conspiring to possess with the intent to distribute cocaine, engaging in a continuing criminal enterprise, and money laundering; he received a life sentence. (DE #1, Petition; DE #10-1, Exhibit 1) The Eighth Circuit Court of Appeals affirmed his convictions and sentence on July 11, 1994. United States v. Johnson, 28 F.3d 1487 (8th Cir. 1994). The United States Supreme Court denied the petition for writ of certiorari on January 9, 1995. Johnson v. United States, 513 U.S. 1098 (1995).

         On April 23, 1997, Scott filed a 2255 motion in the sentencing court; the motion was denied on January 20, 1998. Thereafter, on March 26, 1998, the court declined to issue a certificate of appealability, and on February 10, 1999, the Eighth Circuit granted the defendant a certificate of appealability limited to certain issues. It ultimately affirmed the judgment of the sentencing court denying post-conviction relief, concluding that the United States Supreme Court Case, Richardson v. United States, 526 U.S. 813 (1999)^[1], had no effect on the outcome of Scott's case because, even assuming trial counsel should have requested a specific unanimity instruction to support the continuing criminal enterprise count, Scott had not established ...