United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
Bowens, a federal inmate proceeding with counsel, submitted
this successive motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence ("§ 2255 Motion,
" ECF No. 244). Bowens argues that in light of the
Supreme Court's ruling in Johnson v. United
States, 5 S.Ct. 2551');">135 S.Ct. 2551 (2015), his guidelines sentence
is unconstitutional. (Id. at 2.) The Government has
responded. (ECF No. 252.) Bowens has replied. (ECF No. 253.)
For the reasons set forth below, the Court will dismiss
Bowen's § 2255 Motion as barred by 28 U.S.C. §
2255(h)(2) and untimely.
jury trial, Bowens was convicted of conspiracy to possess and
distribute crack cocaine, powder cocaine, and heroin, in
violation of 21 U.S.C. § 846 (Count One), two counts of
harboring a fugitive from arrest, in violation of 18 U.S.C.
§ 1071 (Counts Three and Four), and obstruction of
justice, in violation of 18 U.S.C. § 1503 (Count Six).
The probation office prepared a Presentence Report
("PSR") for Bowens prior to sentencing. In the PSR,
the probation officer found Bowens to be a career offender
because the offense of conviction was a controlled substance
offense and Bowens had been previously convicted of two
crimes of violence, which were two robbery convictions from
1983. (PSR ¶¶ 33, 34, 41, ECF No. 202.) Based on
the career offender enhancement, Bowen's criminal history
category increased from Level IV to Level VI. (Id.
Wksht C, at 2; Wksht D, at 1.) Bowens's total offense
level of 4 5 was driven by characteristics of the offense,
such as drug quantity and a dangerous weapon possessed, and
several other enhancements, and was not based on the finding
that he was a career offender. (Id. Wksht A, at 1;
Wksht D, at 1.) Bowens's sentencing guidelines range was
life in prison. (Id. Wkst D, at 1.) At the time
Bowens was sentenced, the United States Sentencing Guidelines
("USSG") were deemed mandatory. See United
States v. Booker, 543 U.S. 220, 233 (2005).
January 8, 1999, the Court sentenced Bowens to life in prison
for the drug conspiracy charge and to concurrent sentences of
60 months for the two counts of harboring a fugitive and 12 0
months for obstruction of justice. On August 18, 2000, the
United States Court of Appeals for the Fourth Circuit
affirmed Bowens's convictions for drug conspiracy and
obstruction of justice, but reversed his convictions for
harboring a fugitive based on lack of venue. United
States v. Bowens, 224 F.3d 302 (4th Cir. 2000) .
March 22, 2002, Bowens, by counsel, filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. 125.) By Memorandum Opinion and Order
entered on December 17, 2002, the Court denied Bowens's
§ 2255 motion. (See ECF Nos. 133, 134.) Since
that time, Bowens has filed several unauthorized second or
successive § 2255 motions. (See ECF Nos. 157,
158, 207, 208.)
Bowens sought permission from the Fourth Circuit to file a
successive § 2255 motion based upon the Supreme
Court's decision in Johnson. On June 23, 2016,
the Fourth Circuit granted Bowens authorization to file this
successive § 2255 motion. (See ECF No. 242, at
1.) As discussed below, Bowens's claim is procedurally
barred by 28 U.S.C. 2255(h) (2) and by 28 U.S.C. §
2255(f) (3) as untimely.
Bowens Fails to Satisfy The Standard For Successive §
Fourth Circuit granted Bowens pre-filing authorization to
file a successive motion in this Court pursuant to 28 U.S.C.
§ 2255(h)(2). Under § 2255(h)(2), Bowens must
demonstrate that his claim is based upon "a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable." 28 U.S.C. § 2255(h)(2). In his §
2255 Motion, Bowens raises entitlement to relief based upon
the following claim:
Claim One: "In light of Johnson, Mr. Bowens
does not qualify as a career offender." (§ 2255
Mot. 6 (emphasis omitted and capitalization corrected).)
Fourth Circuit's determination that Bowens satisfies
§ 2255(h) "is 'tentative in the following
sense: the district court must dismiss the motion that [the
Fourth Circuit has] allowed the applicant to file, without
reaching the merits of the motion, if the court finds that
the movant has not satisfied the requirements for the filing
of such a motion.'" McLeod v. Peguese, 337
Fed.Appx. 316, 324 (4th Cir. 2009) (quoting Bennett v.
United States, 119 F.3d 468, 470 (7th Cir. 1997)). Thus,
it is necessary to examine Bowens's claim and dismiss it,
if the Court finds that it is barred under § 2255 (h) .
See United States v. MacDonald, 641 F.3d 596, 604
(4th Cir. 2011) (citing United States v. Winestock,
340 F.3d 200, 205 (4th Cir. 2003)).
satisfy 28 U.S.C § 2255(h)(2), Bowens must demonstrate:
(1) the rule announced in Johnson v. United States,
13 5 S.Ct. 2551 (2015), constitutes a new rule of
constitutional law that was previously unavailable; and (2)
the Supreme Court has made the rule announced in
Johnson retroactive to cases on collateral review.
As explained below, Bowens fails to satisfy these
requirements because the Supreme Court has neither extended
the rule in Johnson to Sentencing Guidelines
challenges, nor made such an extension retroactive.
Johnson, the Supreme Court held "that imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act [("ACCA")] violates the
Constitution's guarantee of due process." 135 S.Ct.
at 2563. In Welch v. United States, 136
S.Ct. 1257 (2016), the Supreme Court held that
"Johnson announced a substantive rule of law
that has retroactive effect in cases on collateral
review." Id. at 1268. Bowens now argues that
Johnson invalidated the identically worded
"residual clause" in United States Sentencing
Guidelines ("USSG") § 4B1.2. However, after
Bowens filed his § 2255 Motion, the Supreme Court, in
Beckles v. United States, 137 S.Ct. 886 (2017),
refused to extend Johnson's holding to the similar
residual clause found in ...