United States v. Bowman ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. Criminal No. 11-00129-2 (CKK)
Civil No. 17-2182 (CKK)
WILLIAM MARTIN BOWMAN,
Defendant.
MEMORANDUM OPINION
December 3, 2018
Presently before the Court is Defendant William Bowman’s [961] Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Defendant, William Bowman (“Mr.
Bowman” or “Defendant”), who is proceeding pro se, requests that this Court vacate or reduce his
sentence based upon his claims of ineffective assistance of counsel and his challenges to the
constitutionality of his sentence regarding the firearms charge and the drug conspiracy charge.
Upon a searching review of the parties’ submissions, 1 the relevant authorities, and the record as a
whole, the Court finds that Mr. Bowman is not entitled to the requested relief. Accordingly, the
Court shall DENY Mr. Bowman’s Motion to Vacate, Set Aside or Correct Sentence.
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In connection with this Memorandum Opinion and the accompanying Order, this Court
considered Def.’s Mot. to Vacate, Set Aside or Correct Sentence, ECF No. 961; Def.’s Supp.
Mem. of Law in Support of Mot., ECF No. 968; the Govt.’s Opp’n, ECF No. 982; and Def’s
Reply, ECF No. 990.
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I. BACKGROUND
A. Arrest and Conviction
In a superseding indictment filed on September 17, 2012, Mr. Bowman was charged with
one count of conspiracy to distribute and possess with intent to distribute five kilograms or more
of cocaine, three counts of using, carrying and possessing a firearm during a drug trafficking
offense, three counts of distribution of cocaine, and two counts of unlawful distribution of
cocaine base occurring on July 1 and 7, 2000. Redacted Superseding Indictment, ECF No. 440.
Upon motion by the Government, the two counts of unlawful distribution of cocaine base
occurring on July 1 and 7, 2000 were dismissed by the Court on October 11, 2012. Two of the
counts of using, carrying and possessing a firearm during a drug trafficking offense were
consolidated into one count before the case went to the jury.
On November 20, 2012, following a month long jury trial, the jury found Mr. Bowman
guilty on the following charges: 1) conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine (21 U.S.C. §§ 846, 841 (a)(1) and (b)(1)(A)(ii)) (Count One),
three counts of distribution of cocaine (21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C))(Counts Three-
Five), and one count of using, carrying, and possessing a firearm (18 U.S.C. § 924(c)(1)) (Count
Two). Verdict Form, ECF No. 653. 2 The facts underlying these charges may be summarized as
follows: Mr. Bowman was an upper level manager of a wholesale cocaine trafficking organization
operating in the District of Columbia (the “District”) metropolitan area from January 2009 through
April 26, 2011, when he was arrested as a result of an investigation by the Federal Bureau of
Investigation and the Metropolitan Police Department. Mr. Bowman and his co-conspirators
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Mr. Bowman was acquitted by the jury of the second count of using, carrying, and possessing a
firearm during a drug trafficking offense.
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acquired large quantities of cocaine in California, shipped it to the District and distributed it to
mid-level and street-level dealers. Mr. Bowman was primarily responsible for the logistics of
paying the suppliers and arranging shipments of cocaine from California to the District. In this
role, Mr. Bowman directed his co-conspirators to rent shipping pods in which to ship money and
cocaine between the District and California. He also provided financing for the drug-trafficking
organization, and he was involved in cutting and processing the cocaine received from California.
See Govt’s Mem. in Aid of Sentencing, ECF No. 696, at 1-2. During most of his pretrial and trial
proceedings, Mr. Bowman was represented by a court-appointed attorney, Mr. Dwight Crawley.
CJA 20 Appointment, ECF No. 24.
B. Sentencing and Appeal
The court held a sentencing hearing on April 9, 2013, and Mr. Bowman was sentenced to
two hundred forty (240) months of imprisonment on Counts 1, 3, 4 and 5, to run concurrently, and
a term of three hundred (300) months of imprisonment on Count 2, to run consecutively to Counts
1, 3, 4 and 5, together with a supervised release period of one hundred and twenty (120) months
on Count 1, sixty (60) months on Count 2, and seventy-two (72) months on Counts 3, 4, and 5,
with supervised release running concurrently. Judgment in a Criminal Case, ECF No. 761. Mr.
Bowman and co-defendant Mr. Williams directly appealed the judgment, arguing that: (1) the
Court erroneously denied their motions to suppress evidence gained from wiretapping; (2) the
Court erroneously allowed the government to present lay opinion testimony from the case
investigator; (3) the Court should have granted the Mr. Williams’ motion for severance and
judgment of acquittal; and (4) the government engaged in unconstitutional overreaching in
“wiring” the plea offers extended to Mr. Bowman and Mr. Williams.
The United States Court of Appeals for the District of Columbia Circuit rejected Mr.
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Bowman’s claims and affirmed his conviction on July 8, 2016. United States v. Henry Brandon
Williams, 827 F.3d 1134 (D.C. Cir. 2016). Notably, the Circuit Court found that Mr. Bowman’s
due process challenge on the wired plea deals failed under United States v. Pollard, 959 F.2d 1011(D.C. Cir. 1992). Under Pollard, a plea offer that is wired to co-defendants does not automatically
offend due process so long as there is no indication of government coercion or bad faith, and in
this case, “[n]othing in the record suggests that the Government wired Bowman’s plea in a bad-
faith effort to coerce him into involuntarily accepting a plea…” United States v. Williams, 827
F.3d at 1164-65. Furthermore, because the Government had probable cause to arrest and prosecute
both Bowman and co-defendant Williams, Bowman “had ‘no right to be offered a plea’ at all much
less the particular plea agreement of his choosing.” Id. at 1165 (citing Missouri v. Frye, 566 U.S.
134, 148 (2012)).
C. Present Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255Pending before the Court is Mr. Bowman’s Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (“Motion”). Mr. Bowman’s Motion is premised on allegations of
ineffective assistance of counsel related to his trial counsel, Dwight Crawley, and his appellate
counsel, Julian S. Greenspun. More specifically, Mr. Bowman claims that his trial counsel failed
to “address[ ] the fact that [he] was willing to accept a plea without inducing any other co-
defendants to plea[d]” and to inform the Government that Mr. Bowman “still wanted to accept a
plea” before trial and further, that counsel did not properly advise him of the consecutive nature
of sentencing on the firearms counts. Def.’s Mot. To Vacate, Set Aside or Correct Sentence, ECF
No. 961, at 4-5. Mr. Bowman asserts generally that his appellate counsel failed to raise these
[same] issues on appeal. Additionally, Mr. Bowman claims that his trial counsel visited him rarely
and he challenges the alleged unconstitutionality of the punishment imposed for his firearms and
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drug conspiracy convictions.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, federal prisoners may file a motion to vacate, set aside or correct
his sentence if he believes that the otherwise final 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.” 28 U.S.C. § 2255(a). The standard for granting such a motion is high,
as courts want to generally respect the finality of judgments and note the opportunities already
afforded to prisoners to raise objections during trial or on appeal. “[T]o obtain collateral relief a
prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States
v. Frady, 456 U.S. 152, 166 (1982). The petitioner has the burden of proof to demonstrate his right
to such relief by a preponderance of the evidence. United States v. Basu, 881 F. Supp. 2d 1, 4
(D.D.C. 2012). A court shall grant a hearing to determine the issues and make findings of fact and
conclusions of law “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
With few exceptions, a prisoner may not raise a claim as part of a collateral attack if that
claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause” for
his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence”
of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998).
However, “[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255
motion, he need not show ‘cause and prejudice’ for not having raised such claims on direct appeal,
as these claims may properly be raised for the first time in a § 2255 motion.” United States v.
Cook, 130 F. Supp. 2d 43, 45 (D.D.C. 2000) (citation omitted), aff’d, 22 F. App’x 3 (D.C. Cir.
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2001).
A defendant claiming ineffective assistance of counsel may raise it for the first time as a
collateral attack, rather than on direct appeal, but must show (1) “that counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms,” and (2) “that
this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008)
(citation omitted). For the first prong, “[j]udicial scrutiny of counsel’s performance must be highly
deferential” and defendant must “overcome the presumption that under the circumstances, the
challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S.
668, 689 (1984) (internal quotation marks and citation omitted). “The benchmark for judging any
claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686. It is the petitioner’s burden to show that counsel’s errors were “so
serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth
Amendment. Harrington v. Richter, 562 U.S. 86, 104 (2011). The Court must consider “counsel’s
overall performance,” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” Strickland, 466 U.S. at 689.
Furthermore, the defendant must meet the second Strickland prong and “affirmatively
prove prejudice.” Id. at 693. That is, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 669. See also Cullen v. Pinholster, 563 U.S. 170 (2011) (To find prejudice, the
petitioner must show that there is “a substantial, not just conceivable, likelihood of a different
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result.”). An ineffective assistance of counsel claim is defeated if the defendant fails to
demonstrate either prong.
III. DISCUSSION
A district court may deny a Section 2255 motion without a hearing when “the motion and
files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b). Whether or not to hold a hearing is a decision “committed to the district court’s
discretion, particularly when, as here, the judge who is considering the § 2255 motion also presided
over the proceeding in which the petitioner claims to have been prejudiced.” United States v.
Orleans-Lindsey, 572 F. Supp. 2d 144, 166 (D.D.C. 2008); see also United States v. Agramonte,
366 F. Supp. 2d 83, 85 (D.D.C. 2005), aff’d, 304 Fed. App’x 877 (D.C. Cir. 2008). “The judge’s
own recollection of the events at issue may enable him summarily to deny a Section 2255 motion.”
Agramonte, 366 F. Supp. 2d at 85 (citing United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir.
1992), cert. denied, 506 U.S. 915 (1992)). To warrant a hearing, the petitioner’s Section 2255
motion must “raise[] ‘detailed and specific’ factual allegations whose resolution requires
information outside of the record or the judge’s ‘personal knowledge or recollection.’” Pollard,
959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).
Based on a review of the parties’ pleadings and the entire record in the criminal proceeding,
the Court finds that there is no need for an evidentiary hearing on the instant motion. As explained
below, Mr. Bowman has not proffered detailed and specific factual allegations requiring this Court
— which handled the trial and sentencing in this case — to look outside the record and hold a
hearing on the issues raised in Mr. Bowman’s motion. Accordingly, the Court shall render its
findings based on the parties’ pleadings and the record in this case.
Mr. Bowman raises claims of: (1) ineffective assistance of his trial counsel; (2) ineffective
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assistance of his appellate counsel; and (3) the unconstitutionality of the length of his sentences.
The court shall address each claim in turn.
A. Ineffective Assistance of Trial Counsel
Mr. Bowman claims that his trial counsel: (1) failed to “address[ ] the fact that [he] was
willing to accept a plea without inducing any other co-defendants to plea[d];” (2) failed to inform
the Government that Mr. Bowman “still wanted to accept a plea” before trial; and (3) did not
properly advise him of the consecutive nature of sentencing on the firearms counts. Def.’s Mot.
To Vacate, Set Aside or Correct Sentence, ECF No. 961, at 4-5. Mr. Bowman’s arguments center
on his claim that trial counsel prevented him from entering a plea, thus subjecting him to trial and
ultimately, a much higher sentence than what the Government had offered.
The Court relies on the record in this case in setting forth the history of Mr. Bowman’s plea
negotiations. The Government’s first plea agreement offer to Mr. Bowman was for 25 years of
imprisonment, but that plea agreement was “wired;” i.e., contingent on the acceptance of a plea
offer by one or more of his co-conspirators. Mr. Crawley informed the Court that Mr. Bowman
“communicated to [him] that he did not want to accept [the plea] offer.” Transcript (“Tr”) of April
13, 2012 Status Hearing, ECF No. 890, at 19. Upon inquiry by the Court, Mr. Bowman indicated
that he rejected this offer. See id. at 21-22 (the Court inquired if Mr. Bowman needed additional
time to discuss the plea offer with his counsel before responding to the plea offer, but Mr. Bowman
indicated that he was “not accepting [the plea offer]” and he was “satisfied with [his] decision.”)
The Government’s second plea agreement offer was for a sentence of no more than 23
years, and it was wired only to co-defendant Henry Brandon Williams (“Williams”) accepting a
plea offer. September 7, 2012 Status Hearing Tr., ECF No. 897, at 71, 75. Mr. Bowman was
present when his counsel informed the Court on September 7, 2012 that Defendant wanted to
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accept that offer but could not because of the wiring of the offer and his co-defendant Williams’
refusal to enter a plea. Id. at 66. This Court noted that the conditions of the plea offer were within
the Government’s discretion. Id. at 75.
The third iteration of the Government’s plea agreement offer was discussed by counsel in
front of the Court and in the presence of Mr. Bowman, on October 22, 2012. 3 Mr. Crawley noted
that the Government had held open its plea offer to Mr. Bowman, conditioned either on (1) c-
defendant Williams pleading guilty, or (2) Mr. Bowman cooperating against his co-defendants.
More specifically, “[Mr. Bowman] [was] made aware of the plea agreement which would require
that he either cooperate against his co-defendants or that in the alternative[,] [if] Mr. Henry
Williams decided to plead guilty, the Government would remove the wired aspect of the plea and
allow Mr. Bowman to plead guilty.” October 22, 2012 Trial Tr., ECF No. 929, at 7. Mr. Crawley
indicated that Mr. Bowman did “not wish to engage in any discussions with the Government and
[did] not wish to plead guilty based upon the offer that has been made to him.” Id. That third
offer — which was not necessarily wired — was accordingly rejected, and Mr. Bowman pled not
guilty. On November 20, 2012, the jury found him guilty on all counts except for one count of
using, carrying or possessing a firearm during a drug trafficking offense.
The Government made three plea offers, two of which were wired to one of Mr. Bowman’s
co-defendants accepting a plea, and the third which was either wired to a co-defendant’s plea or
required Mr. Bowman to cooperate and provide evidence against his co-defendants. Mr. Bowman
was unable to accept any of the offers that were contingent on his co-defendant accepting a plea
based on the co-defendant’s refusal to do so. On September 7, 2012, Mr. Crawley informed
3
Jury selection was ongoing on October 22, 2012, and the trial commenced on October 23, 2012.
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opposing counsel and the Court that:
[T]he last offer we had regarding Mr. Bowman is that if Mr. Williams were to plead guilty,
the Government would seek a sentence under a Rule 11(c) to have his sentence capped at
23 years; that would be including both his charges here and his violation. Mr. Bowman is
prepared to take that deal and would hope that they would unwire it. He would take the
deal, Your Honor.
Tr., ECF No. 897, at 75. Mr. Williams was still unwilling to plead guilty.
The record in this case demonstrates however that Mr. Bowman could have accepted the
final plea offer if he agreed to cooperate with the Government and testify against his co-defendants
Edwards and Williams. The record shows that Mr. Bowman was aware of his opportunity to
accept a plea deal that was not wired to his co-defendants, if he cooperated with the Government,
and he elected not to do so, and Mr. Bowman has provided no evidence that challenges what the
record shows. The record indicates further that Mr. Bowman’s counsel not only requested that the
Government unwire the plea, but he made it clear to the Government that Mr. Bowman was
interested in a plea if the wired aspect of the plea was dropped or the condition that he cooperate
against his co-defendants was removed. September 7, 2012 Status Hearing Tr., ECF No. 897, at
75; October 22, 2012 Trial Tr., ECF No. 929, at 7.
Additionally, the record contradicts Mr. Bowman’s claims that he was not advised of the
consecutive nature of sentencing on the firearm counts or the mandatory minimum sentence which
would be imposed. At the April 13, 2012 Status Hearing, with Defendant present, Mr. Crawley
stated on the record:
So, essentially we’re taking the case where the guidelines may call for 360 months to life,
we’re making it essentially 45 years to life because, as the Court is aware, once the
mandatory minimums take effect, you cannot deviate from those. So he would be looking
at essentially 45 years to life, and that’s without any regard to whether or not the Court
decided that the other convictions, what weight it would give to the other convictions as to
what type of sentence you would ultimately fashion. Obviously, the gun charge has to
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run consecutive, the 924(c) charge has to run consecutive to the substantive gun
charges.
April 13, 2012 Status Hearing Tr., ECF No. 890, at 13 (emphasis added).
On October 22, 2012, with Defendant present, defense counsel made the following
statements regarding sentencing:
[W]hat I’ve always advised Mr. Bowman is that under the statute, as it relates to the
conspiracy charge, he’s looking at a mandatory minimum time of ten years, maximum
punishment is life. Because the Government has filed an 851 notice and because it appears
that he does have a prior conviction for a drug-related offense that would qualify as a
predicate offense, that takes his mandatory minimum from ten to 20 years on the
conspiracy charge alone. . . . At all times I’ve advised him that as it relates to the gun
charges, that they would consolidate. . . . Because he has a prior conviction involving a
924(c) count. The consolidation of all the charges concerning the 924(c) counts in this
case would lead to a mandatory sentence of 25 years consecutive. That is based on a
second or subsequent conviction for the 924(c) counts. That being said, my advice to Mr.
Bowman has always been that at a minimum, if he were found guilty without regard to any
other issues concerning the sentencing guidelines or otherwise, that this Court would have
to sentence him to 45 years to life, and that the Court could not depart from the 45-year
mandatory minimum for any reason.
Tr., ECF No. 929, at 6-7 (emphasis added). Accordingly, Defendant was informed that the gun
charge sentence would be consecutive and told that the total mandatory minimum sentence as
indicated would consist of a total 20 years and 25 years or a 45-year sentence which the Court
would be required to impose
Finally, Mr. Bowman’s broad claims that his counsel “visit[ed] [him] scarcely,” and “took
[him] to trial without preparing adequately” are not actionable because they are unsupported by
any facts, and the Court shall summarily deny these claims as vague and conclusory. See Mitchell
v. United States, 841 F.Supp.2d 322, 328 (D.D.C. 2012) (“district courts have the power to deny
§ 2255 motions if they offer only bald legal conclusions with no supporting factual allegations”).
Moreover, it is the Court’s observation that Mr. Crawley was well prepared to go to trial.
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Mr. Bowman cannot establish counsel’s deficient performance under the first prong in
Strickland, as nothing in the record supports Defendant’s claims that counsel’s performance fell
below an objective standard of reasonableness. Mr. Crawley made it clear to the Government and
this Court that Mr. Bowman was willing to accept a plea offer that was not wired. Counsel even
suggested that the Government unwire the plea offer, but when there was a later unwired plea
offer, which required Defendant’s cooperation, Mr. Bowman voluntarily elected not to take it. In
the presence of Mr. Bowman, his counsel stated on the record that he discussed with Defendant
the consecutive nature of the firearm sentences.
Even assuming arguendo that the Court found Mr. Bowman’s counsel did not behave in a
professionally reasonable manner, Mr. Bowman does not meet the second prong in Strickland
because he fails to prove that, “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Mr. Bowman could not have accepted the
wired plea deals without his co-Defendants’ cooperation and he willingly chose not to accept the
final plea deal requiring cooperation even after he had been advised of the prospective mandatory
minimum sentence which would be imposed, including a consecutive sentence. Mr. Bowman has
not proven that his counsel behaved in a professionally unreasonable manner which unjustly
prejudiced him, and neither prong of the standard in Strickland has been met.
B. Ineffective Assistance of Appellate Counsel
Mr. Bowman argues also that his appellate counsel rendered ineffective assistance by
“fail[ing] to raise all of the above mention[ed] arguments.” Def’s Supp. Mem. In support of Mot.,
ECF No. 968, at 9. Similar to some of his claims about his trial counsel being ineffective,
addressed above, this claim is vague and conclusory, and it must be denied for the same reason.
Furthermore, even where claims of appellate ineffectiveness may be raised and sufficiently pled,
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“it is difficult to show deficient performance under those circumstances because counsel ‘need not
(and should not) raise every non-frivolous claim on appeal and may instead select from among
them in order to maximize the likelihood of success of appeal.’” Cargel v. Mullin, 317 F.3d 1196,
1202 (10th Cir. 2003) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)).
Given that Mr. Bowman’s proposed claims lack merit, the Court finds that appellate
counsel did not act in an objectively unreasonable manner by failing to raise these issues on appeal.
“This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely
to prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 U.S. 527, 56 (1986 (quoting Jones v. Barnes, 462 U.S. 745, 751-
52 (1983)). Mr. Bowman has not established deficient performance or prejudice with respect to
his appellate counsel.
C. Unconstitutionality of Sentences
Mr. Bowman claims that his sentence for the drug conspiracy count, Count One, is
unconstitutional because “the district judge followed the presentence report recommendations and
raised the base offense level above the require[d] sentencing guideline calculation.” Def’s Mot. To
Vacate, Set Aside or Correct Sentence at 2. The facts determined at trial established that Mr.
Bowman possessed with the intent to distribute more than 50 kilograms but less than 150 kilograms
of cocaine, and Mr. Bowman’s base offense level properly accounted for the 50 kilograms but less
than 150 kilograms of cocaine. See Final PSI Report, ECF No. 689, at 9. Additionally, Mr.
Bowman claims — without further argument or explanation — that his “[f]irearms sentence is
unconstitutional.” See Def,’s Mot. to Vacate, Set Aside or Correct Sentence, ECF No. 961, at 6
(referencing this issue in one sentence). Because this claim is vague, conclusory, and without
support, it may be summarily denied. See Mitchell, supra., 841 F.Supp.2d at 321.
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Mr. Bowman did not raise on direct appeal his claims that his firearm and drug conspiracy
sentences are unconstitutional, and more than the punishment allowed by the statute. Def’s Supp.
Mem., ECF No. 968, at 5. The law is clear that if a defendant fails to raise an available challenge
on direct appeal, he is procedurally barred from raising the claim in a subsequent collateral attack,
unless he shows cause for failure to do so and prejudice as a result of his failure. United States v.
Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003); see McCleskey v. Zant, 499 U.S. 467, 493-94
(1991); United States v. Frady, 456 U.S. 152, 168 (1982).
Mr. Bowman’s claims that his sentenced are unconstitutional are procedurally barred
because they were not raised on direct appeal nor does he show cause or prejudice. Mr. Bowman
asserts that he failed to raise the issues on appeal because of ineffective assistance of counsel but
his claims are conclusory and vague. Mr. Bowman’s claim that his “Appeal counsel failed to raise
all of the above mention[ed] arguments” is insufficient to show cause. To establish cause, a
defendant must demonstrate “some objective factor external to the defense [that] impeded
counsel’s efforts to raise the claim.” McCleskey, 499 U.S. at 493. Additionally, Mr. Bowman must
show actual prejudice, which means: “not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982)
(emphasis omitted).
Mr. Bowman’s claim that his sentence for the drug conspiracy count is unconstitutional is
belied by the “[e]vidence at trial, which included witness testimony, controlled narcotics purchases
and documentary evidence” establishing the amount of drugs for which Mr. Bowman was
accountable. Final PSI Report, ECF No. 689, at 9. Furthermore, this Court has already addressed
the appropriateness of Mr. Bowman’s sentence, including a gun charge sentence that was
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consecutive and the imposition of a mandatory minimum sentence. Accordingly, Mr. Bowman is
unable to show actual prejudice because raising these issues on appeal would have warranted him
no relief. Accordingly, Mr. Bowman’s claims that his sentencings on the firearms and drug
conspiracy charges are unconstitutional are procedurally barred because these claims were not
raised on direct appeal nor does he show cause or prejudice
IV. CONCLUSION
For all of the foregoing reasons, the Court shall DENY Mr. Bowman’s [961] Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Furthermore, no Certificate
of Appealability shall issue from this Court. To the extent Mr. Bowman intends to file an appeal,
he must seek a Certificate of Appealability from the United States Court of Appeals for the District
of Columbia Circuit in accordance with Federal Rule of Appellate Procedure 22.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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