United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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
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. Bowie timely filed this § 2255
motion on November 29, 2016. Doc. 1 at 12.
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.
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.
The ACCA Enhancement
The Counting of Bowie's Three Drug Offenses as Separate
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
Bowie's Descamps Claim
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 ...