United States District Court, District of Columbia
C. Lamberth United States District Judge.
before this Court is Eric Scurry's motion pursuant, to 28
U.S.C. § 2255 to vacate, set aside, or correct a
sentence by a person in federal custody. ECF No. 387. After
considering Scurry's motion and reply, the opposition by
the United States, the applicable law, and the entire record
herein this Court DENIES petitioner's
§ 2255 motion to vacate, set aside, or correct his
2009, the FBI embarked on an investigation into narcotics
trafficking in the 4200 block of 4th Street SE in Washington,
D.C. As a result of information obtained from two cooperating
witnesses, the FBI concluded that Mr. Scurry was a crack
(cocaine base) dealer. On April 2, 2010, the FBI was granted
authorization to wiretap Mr. Scurry's cell phone. This
tap ultimately lasted from April 2, 2010 until May 31, 2010.
Based on evidence obtained in the Scurry tap, the FBI was
granted authorization to tap to cell phones associated with
co-defendant Terrance Hudson from June 14, 2010 to July 13,
2010. The Hudson taps then pointed to co-defendant Robert
Savoy, and the FBI was granted authorization to tap two cell
phones associated with Savoy from July 23, 2010 to August 21,
2010. Information obtained from the Savoy taps implicated
co-defendant James Brown, and the FBI obtained authorization
to tap Brown's cell phone from September 13, 2010 to
October 12, 2010.
result of the evidence obtained in the wiretaps, the
defendants were indicted in 2010 for various drug-trafficking
offenses. In 2011, defendants Scurry, Hudson, Savoy, Johnson,
and Brown moved to suppress the evidence obtained from the
wiretaps on the grounds that the affidavits in support of the
government's applications for interception of
communications did not establish probable cause, did not
satisfy the necessity requirements of 18 U.S.C. §
2518(3)(c), did not meet the "minimization"
requirements under Title III, and that the taps were not
properly authorized. This Court denied those motions on
August 3, 2012. See United States v. Savoy, 883
F.Supp.2d 101 (D.D.C. 2012). The defendants thereafter
entered into plea agreements. Defendant Scurry pleaded guilty
to a two-count superseding information charging him with
conspiracy to distribute 280 grams or more of cocaine base
and conspiracy to commit money laundering. He agreed that he
was responsible for more than 280 grams but less than 840
grams of cocaine base and that a sentence of 144 months was
appropriate. On December 3, 2012, he was sentenced to 144
appeal, the Court of Appeals for the D, C. Circuit found that
"each of the Hudson and Johnson [wiretap] orders is
'insufficient on its face,' because each fails to
include information expressly required by Title III,"
namely, the identity of "the individual high-level
Justice Department official who, as required by section
2516(1), authorized the underlying wiretap application."
United States v. Scurry, 821 F.3d 1, 8 (D.C. Cir.
2016) (internal citation omitted). The Court of Appeals found
that suppression of the evidence collected or derived from
the Hudson and Johnson wiretaps was the appropriate remedy.
Id. at 13-14. With respect to the Scurry wiretaps,
however, the Court of Appeals found that the applications
were supported by probable cause and satisfied the necessary
requirements. Id. at 16-18. It therefore affirmed
this Court's denial of Mr. Scurry's motion to
suppress. Id. at 18.
the case was remanded for further proceedings, the government
determined that evidence from the Savoy taps was derived from
the Hudson taps, and was therefore subject to suppression. It
thus moved to dismiss the cases against defendants Hudson,
Johnson, Savoy, and Brown. Those motions were granted on
September 28, 2016, and the defendants were released from
prison. Mr. Scurry therefeafter timely filed this § 2255
motion to vacate, set aside or correct his sentence arguing
that his guilty plea was not knowing or voluntary because
"at the time he pled guilty, he believed he was agreeing
to drug-quantity amounts attributable to his co-conspirators
and, because their cases were later dismissed by the
government, he is entitled to the same result." ECF No.
396 at 4.
28 U.S.C. § 2255
28 U.S.C. § 2255, a federal prisoner can move for the
court that sentenced him to vacate, set aside or correct that
sentence if the "sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack."
Id. § 2255(a). "Relief under § 2255
is an extraordinary remedy in light of society's
legitimate interest in the finality of judgments."
United States v. Zakas, 793 F.Supp.2d 77, 80 (D.D.C.
2011). To obtain collateral review under § 2255,
petitioner "must clear a significantly higher hurdle
than would exist on direct appeal." United States v.
Frady, 456 U.S. 152, 166 (1982). The petitioner bears
the burden of proof under § 2255 and must show that he
is entitled to relief by the preponderance of the evidence.
United States v. Pollard, 602 F.Supp.2d 165, 168
Knowing and Voluntary
accepting a plea of guilty or nolo contendere, the court must
address the defendant personally in open court and determine
that the plea is voluntary and did not result from force,
threats, or promises." Fed. R. Crim. P. 11(b)(2). To
ensure that a plea is voluntary, the defendant participates
in a colloquy with the trial court to determine that he
understands the nature of the charge to which the plea is
offered. Fed. R. Crim. P. 11 (c)(1). For a plea to be
voluntary under the United States Constitution, "a
defendant must receive real notice of the true nature of the
charge against him." United States v. Ahn, 231
F.3d 26, 29 (D.C. Cir. 2000). "Real notice is that which
is sufficient to give the defendant an understanding of the
law in relation to the facts of his case. In assessing
whether the defendant has such an understanding, the record
of the plea colloquy must, based on the totality of the
circumstances, lead a reasonable person to believe that the
defendant understood the nature of the charge."