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Bowie v. United States

United States District Court, N.D. Alabama, Eastern Division

February 12, 2018

IRA LESTER BOWIE, JR., Petitioner,



         Ira Lester Bowie, Jr., a federal prisoner, seeks to have his sentence vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255 on the grounds that the court improperly sentenced him as an armed career criminal and that his attorneys allegedly provided ineffective assistance. Doc. 1. Also before the court are Bowie's Motion to Appoint Counsel, doc. 3, and Motion for Preference, doc. 5, which asks that this court require the government to respond to his petition. For the reasons stated below, Bowie's petition and motions are DENIED.


         Following conviction and sentencing, 28 U.S.C. § 2255 allows a federal prisoner to file a motion in the sentencing court “to vacate, set aside or correct the sentence” on the basis “that 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 a 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). To obtain relief under § 2255, a petitioner must: (1) file a non-successive petition or obtain an order from the Eleventh Circuit authorizing a district court to consider a successive § 2255 motion, 28 U.S.C. § 2255(h), § 2255 Rule 9; (2) file the motion in the court where the conviction or sentence was received, see Partee v. Attorney Gen. of Ga., 451 F. App'x 856 (11th Cir. 2012); (3) file the petition within the one-year statute of limitations, 28 U.S.C. § 2255(f); (4) be “in custody” at the time of filing the petition, Spencer v. Kemna, 523 U.S. 1, 7 (1998); (5) state a viable claim for relief under the heightened pleading standards of § 2255 Rule 2(b), see also McFarland v. Scott, 512 U.S. 849, 856 (1994); and (6) swear or verify the petition pursuant to 28 U.S.C. § 1746. Finally, “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). However, “if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.


         After Bowie pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), see doc. 20 in case no. 1:14-cr-00375-AKK-JEO, the undersigned sentenced Bowie to a term of imprisonment of one-hundred eighty months, see Id. at 2. Bowie appealed, and the Eleventh Circuit affirmed on July 7, 2016. See doc. 30 in case no. 1:14-cr-00375-AKK-JEO. As a result, his conviction became final on October 5, 2016.[1] Bowie timely filed this § 2255 motion on November 29, 2016. Doc. 1 at 12.

         III. ANALYSIS

         As an initial matter, after considering the nature of Bowie's claim, the court determines that the facts of the case are not so complex that Bowie will require the assistance of an attorney to present his case. See Hunter v. Dep't of Air Force Agency, 846 F.2d 1314, 1317 (11th Cir. 1988). “Appointment of counsel in a civil case is not a constitutional right. It is a privilege that is justified only by exceptional circumstances, such as where the facts and legal issues are so novel and complex as to require the assistance of a trained practitioner.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990) (citations omitted). For this reason, Bowie's motion for appointment of counsel is due to be denied.

         Turning next to the merits of Bowie's petition, when a felon with three or more prior convictions for a “serious drug offense” committed “on occasions different from one another” is convicted of possessing a firearm, the Armed Career Criminal Act (“ACCA”) imposes a mandatory minimum sentence of 15 years. 18 U.S.C. §§ 922(g)(1), 924(e)(1). Bowie received this mandatory minimum sentence as a result of his three prior convictions for sale of a controlled substance. Bowie seeks resentencing on two grounds: (1) that he improperly received the ACCA enhancement, and (2) that his attorneys allegedly provided ineffective assistance. The court discusses each of these arguments below.

         A. The ACCA Enhancement

         1. The Counting of Bowie's Three Drug Offenses as Separate Offenses

         Bowie first contends that the court erroneously sentenced him as an armed career criminal due to his three prior drug convictions. Specifically, Bowie argues that because “[t]he three indictments stem from [his] two ‘sell [sic] of cocaine' and one ‘sell [sic] of marijuana' to the same confidential informant on three dates but under the same criminal investigation, ” doc. 1-1 at 5, the court should have “consolidated” those offenses instead of counting them as separate offenses. This contention failed at sentencing, see doc. 28 at 7-8, 14 in case no. 1:14-cr-00375- AKK-JEO, and it fails now. See United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (“[S]o long as [the] predicate crimes are successive rather than simultaneous, they constitute separate criminal episodes for purposes of the ACCA.”). See also Id. at 690 (“Distinctions in time and place are usually sufficient to separate criminal episodes from one another even when the gaps are small, ” and two offenses are considered distinct if “some temporal ‘break' occurs between [them].”); United States v. Weeks, 711 F.3d 1255, 1258, 1261 (11th Cir. 2013) (district court did not err in counting as separate offenses burglary incidents that “occurred on the same day and involved two businesses that were only 56 feet apart from one another, a distance that could be covered on foot in approximately 13 seconds”). Because binding authority contradicts his position, Bowie is due no relief on this basis.[2]

         2. Bowie's Descamps Claim

         Bowie also asserts that his sentence violates Descamps v. United States, 133 S.Ct. 2276, 2281 (2013), because “the Alabama Statute for Unlawful Distribution of Controlled Substance under § 13A-12-211 interchangeably uses both the ‘sell[]'; ‘deliver[]'; and ‘distribut[e]' a controlled substance, whereby Mr. Bowie were [sic] specifically charged and convicted for the ‘sell, ' to which this specific element cannot match the ACCA's elements: ‘manufacturing, distributing, or intent to manufacture or distribute[.]” Doc. 1-1 at 19 (alterations in original). As Bowie puts it, the elements of Alabama's unlawful distribution of a controlled substance statute offense “sweep more ...

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