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United States v. Bowens

United States District Court, E.D. Virginia, Richmond Division

October 10, 2017

UNITED STATES OF AMERICA
v.
SPENCER BOWENS

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge.

         Spencer 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.

         I. PROCEDURAL HISTORY

         After a 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).

         On 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) .

         On 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.)

         Thereafter, 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.

         II. ANALYSIS

         A. Bowens Fails to Satisfy The Standard For Successive § 2255 Motions

         The 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).)

         The 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)).

         To 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.

         In 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.[1] 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.[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 ...


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