US v. Eduardo Bowman

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999134761-2], updating certificate of appealability status. Originating case number: 2:05-cr-00218-DCN-1,2:12-cv-02249-DCN. Copies to all parties and the district court/agency. [999323159]. Mailed to: Eduardo Bowman. [13-6827]

Appeal: 13-6827

Doc: 7

Filed: 03/26/2014

Pg: 1 of 9

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6827

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDUARDO BOWMAN,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-00218-DCN-1; 2:12-cv-02249-DCN)

Submitted:

August 7, 2013

Decided:

March 26, 2014

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Eduardo Bowman, Appellant Pro Se. Matthew J. Modica, Assistant
United
States
Attorney,
Charleston,
South
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-6827

Doc: 7

Filed: 03/26/2014

Pg: 2 of 9

PER CURIAM:
Eduardo Bowman seeks to appeal the district court’s order
granting the government’s summary judgment motion and denying
relief on his 28 U.S.C.A. § 2255 motion.

We deny a certificate

of appealability and dismiss the appeal.

I.
Adhering to the terms of a negotiated agreement with the
government,

Bowman

pleaded

guilty

in

the

District

of

South

Carolina to conspiracy to distribute and possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846.

In October

2005, the district court, in conformance with the Sentencing
Guidelines, sentenced Bowman as a career offender to 240 months
of

imprisonment.

Bowman

did

not

appeal

his

conviction

or

sentence.
In

February

2012,

Bowman,

being

incarcerated

within

the

jurisdiction of the Eastern District of North Carolina, filed a
petition there pursuant to 28 U.S.C. § 2241, challenging his
career

offender

designation

in

light

of

Carachuri-Rosendo

v.

Holder, 560 U.S. 563 (2010), and United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc).

The district court, with

Bowman’s consent, construed the petition as a § 2255 motion, but
then transferred it to the District of South Carolina.
had

sought

appointment

of

counsel
2

from

the

transferor

Bowman
court

Appeal: 13-6827

Doc: 7

Filed: 03/26/2014

Pg: 3 of 9

under a standing order governing requests for post-conviction
relief based on Simmons; the transfer order concomitantly denied
his request.
The government moved in the transferee court to dismiss
Bowman’s

§ 2255

judgment.

motion,

or,

in

the

alternative,

for

summary

The court determined that Bowman’s motion was filed

outside of the applicable one-year statute of limitations, see
28 U.S.C. § 2255(f), and that Bowman had not made any argument
to justify equitable tolling of the limitations period.

The

court reasoned that, in any event, even if the § 2255 motion had
been timely, Bowman’s arguments were barred by the appeal waiver
in

his

plea

government’s

agreement.
summary

Bowman’s § 2255 motion.

Accordingly,

judgment

motion

the

court

granted

and

denied

relief

the
on

Bowman noted a timely appeal.

II.
Bowman may not appeal the district court’s denial of relief
on his § 2255 motion unless a circuit justice or judge issues a
certificate of appealability.
certificate

of

See 28 U.S.C. § 2253(c)(1)(B).

appealability

will

not

issue

absent

A
“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).

When a prisoner is denied relief on the

merits,

for

the

standard

appealability

is

satisfied

if

reasonable jurists would find the district court’s assessment of
3

Appeal: 13-6827

Doc: 7

Filed: 03/26/2014

Pg: 4 of 9

the constitutional claims to be debatable or wrong.

See Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,
529 U.S. 473, 484 (2000).

If the district court denies relief

on procedural grounds, the prisoner must demonstrate that the
dispositive procedural ruling is debatable, and also that the
motion

states

a

debatable

constitutional right.

claim

of

the

denial

of

a

Slack, 529 U.S. at 484-85.
A.

In this proceeding, we confine our review to the issues
briefed.
not

See 4th Cir. R. 34(b).

challenge

the

district

Bowman’s informal brief does

court’s

adverse

determination

on

equitable tolling or contend that the doctrine should otherwise
apply.

Bowman also fails to address the court’s alternative

determination regarding the appeal waiver.

By electing to not

brief these issues, Bowman has waived their review.

Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009); Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th
Cir. (2004) *

*

The government, however, has not filed a brief invoking
the appeal waiver.
Accordingly, the government has forgone
reliance thereon.
See United States v. Metzger, 3 F.3d 756,
757–58 (4th Cir. 1993).

4

Appeal: 13-6827

Doc: 7

Filed: 03/26/2014

Pg: 5 of 9

B.
Bowman

maintains

that

the

transferor

court

erred

by

construing his § 2241 petition as a § 2255 motion, sending it to
the

District

of

South

Carolina,

appointment of counsel.

and

denying

his

request

for

We disagree.

A federal prisoner seeking to challenge the legality of his
conviction

or

sentence

must

proceed

pursuant

to

§ 2255,

as

petitions under § 2241 generally are reserved for challenges to
the

execution

of

the

prisoner’s

sentence.

115 F.3d 1192, 1194 n.5 (4th Cir. 1997).

See

In

re

Vial,

However, in limited

circumstances, § 2255 may be inadequate or ineffective to test
the legality of the prisoner’s detention.

In those cases, the

prisoner “may file a petition for a writ of habeas corpus in the
district

of

confinement

pursuant

to

§ 2241.”

In

re

Jones,

226 F.3d 328, 333 (4th Cir. 2000).

Because § 2255 is neither

inadequate

the

nor

ineffective

to

test

legality

of

Bowman’s

detention, he was constrained to bring his challenge in a § 2255
motion.

See United States v. Poole, 531 F.3d 263, 267 & n.7

(4th Cir. 2008); Jones, 226 F.3d at 333-34.
Moreover, after providing the required notice of its intent
to

construe

the

§ 2241

petition

as

a

§ 2255

motion,

then

obtaining Bowman’s consent thereto, see Castro v. United States,
540 U.S. 375, 383 (2005), the transferor court properly gave way
to the transferee court.

See 28 U.S.C. § 1631 (2006) (mandating
5

Appeal: 13-6827

Doc: 7

transfer

of

Filed: 03/26/2014

a

civil

Pg: 6 of 9

action

to

the

appropriate

federal

jurisdiction if the transfer “is in the interest of justice”);
28 U.S.C.A. § 2255(a) (directing that a prisoner “in custody
under

sentence

of

a

court

established

by

Act

of

Congress

claiming the right to be released” move the court that “imposed
the sentence” to vacate, set aside, or correct it).
Additionally,
discretion

in

the

transferor

denying

Bowman’s

counsel under the standing order.
F.2d

962,

966

(4th Cir.

1987).

court

did

not

abuse

request

for

appointment

its
of

See Miller v. Simmons, 814
The

standing

order

was

not

applicable to Bowman because he was sentenced in the District of
South Carolina, not the Eastern District of North Carolina.
C.
With respect to the transferee court’s consideration of the
§ 2255 motion, Bowman first challenges the determination that
the

motion

was

filed

limitations period.

after

the

expiration

of

the

applicable

The statute provides, in pertinent part:

A 1-year period of limitation shall apply to a
motion under this section.
The limitation period
shall run from the latest of—
(1) the date on which the
conviction becomes final; . . . .

judgment

of

(3) the date on which the right asserted was
initially recognized by the Supreme Court, if
that right has been newly recognized by the
Supreme Court and made retroactively applicable
to cases on collateral review; or

6

Appeal: 13-6827

Doc: 7

Filed: 03/26/2014

Pg: 7 of 9

(4) the date on which the facts supporting
the claim or claims presented could have been
discovered through the exercise of due diligence.
28 U.S.C.A. § 2255(f)(1), (3)-(4).

Bowman does not suggest that

his § 2255 motion is timely under §§ 2255(f)(1), as it was filed
more

than

one

year

after

his

judgment

of

conviction

became

final, and is not — as the district court found — subject to
equitable tolling.
In addition, Bowman is not entitled to the later triggering
date

under

§ 2255(f)(3).

The

Supreme

Court’s

decision

in

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), upon which
Bowman
cases

bases
on

cannot

his

motion,

collateral

use

it

is

not

limitations period.

the

applicable

therefore,

and,

establish

to

review,

retroactively

§ 2255

onset

of

a
the

to

movant

§ 2255(f)(3)

See United States v. Powell, 691 F.3d 554,

560 (4th Cir. 2012).

By contrast, our decision in United States

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), upon which
Bowman

also

relies,

collateral review.

is

cannot

Court
be

decision

invoked

applicable

to

cases

on

See Miller v. United States, 735 F.3d 141,

145-47 (4th Cir. 2013).
Supreme

retroactively

in

Nonetheless, because Simmons is not a
recognizing
connection

a

new

with

the

right,

it

likewise

limitations

period

onset contemplated by § 2255(f)(3).
Furthermore,

the

decisions

in

Carachuri-Rosendo

and

in

Simmons merely clarified the law and were not part of Bowman’s
7

Appeal: 13-6827

Doc: 7

litigation

Filed: 03/26/2014

history.

calculation

of

Pg: 8 of 9

Hence,

any

they

limitations

applicable to him by § 2255(f)(4).

have

no

period

bearing

on

potentially

the
made

See Lo v. Endicott, 506 F.3d

572, 575–76 (7th Cir. 2007); E.J.R.E. v. United States, 453 F.3d
1094,

1097-98

(8th Cir.

2006);

Shannon

v.

Newland,

410

F.3d

1083, 1088–89 (9th Cir. 2005).
D.
Finally,

and

not

insignificantly,

Bowman’s

two

predicate

Georgia convictions underlying his career offender status were
for possession of cocaine with intent to distribute, for which
he

received

twelve-year

prison

sentences.

The

decisions

in

Carachuri-Rosendo and Simmons notwithstanding, Bowman’s Georgia
convictions provide ample foundation for his designation as a
career

offender.

See

USSG

§§ 4B1.1(a)(3),

4B1.2(b)

(2013)

(authorizing imposition of career offender status in situation
where defendant has “at least two prior felony convictions of
. . . a controlled substance offense,” such offense defined,
inter alia, as one “under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits . . .
the possession of a controlled substance . . . with intent to
. . . distribute”).

8

Appeal: 13-6827

Doc: 7

Filed: 03/26/2014

Pg: 9 of 9

III.
In view of the foregoing, we conclude that Bowman has not
made a substantial showing of the denial of a constitutional
right.

Consequently, we deny his request for a certificate of

appealability, deny his motion to appoint counsel, and dismiss
the appeal.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before this court, and argument would not aid the decisional
process.
DISMISSED

9