Flowers v. United States of America

Filing 11

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/16/2017. (PSM)

FILED
2017 Oct-16 AM 11:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KEVIN D’VAUGHN FLOWERS,

)
)
Petitioner,
)
)
vs.
)
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)

2:16-cv-08104-LSC
(2:96-cr-00089-LSC-JHE-2)

MEMORANDUM OF OPINION
Petitioner Kevin Flowers (“Flowers”), moves for habeas relief pursuant to
28 U.S.C. § 2255. (Doc. 1). The United States opposes his motion. (Doc. 9.) For
the following reasons, the motion is due to be denied.
I.

Background
In 1996, Flowers was sentenced after a federal drug conviction to 250

months’ imprisonment: 190 months for the drugs and a consecutive term of 60
months for possession of a firearm during a drug trafficking offense. See generally
United States v. Flowers, 2:96-cr-00089-LSC-JHE-2. In 2008, Flowers’ 190-month
sentence was reduced to 153 months due to the enactment of a retroactive
guidelines amendment dealing with crack cocaine.
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In May 2015, while Flowers was serving a term of supervised release for the
1996 conviction, he was arrested for illegal possession of controlled substances,
including a quantity of cocaine hydrochloride. As a result of this arrest, Flowers
was charged with violating the terms of his supervised release. This Court
subsequently revoked Flowers’ supervised release and ordered that he be
incarcerated for a period of 60 months. See Doc. 144 (Judgment and Commitment
Order dated June 29, 2015) in United States v. Flowers, 2:96-cr-00089-LSC-JHE-2.
Approximately four months later, Flowers pled guilty to the first count of a
two-count indictment, charging him with the cocaine he was found in possession of
when previously arrested. The new indictment was given case number 2:15-cr00198-KOB-JHE-1. The Court accepted the plea and later sentenced him to an
additional term of 21 months, to be served concurrently with the 60-month
revocation sentence.
Flowers now brings a habeas motion under § 2255, seeking a reduction in his
60-month sentence in the revocation proceeding. Flowers contends that he would
have been entitled to a two-level reduction in the offense level of his original 1996
case due to a retroactive guidelines amendment change (Amendment 782 to the
United States Sentencing Guidelines Drug Table), but that he did not receive the
benefit resulting from this change in the law because the amendment did not take

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effect until November 1, 2014, after his release from custody in 2011. He now asks
the Court to revisit the revocation case and apply the two-level reduction to his 60month sentence.
II.

Discussion
Because Flowers never raised this issue in a direct appeal from the Court’s

order revoking probation, the issue is now procedurally defaulted. As a general
rule, an available challenge to a criminal sentence must be advanced on direct
appeal or else the defendant will be barred from presenting that claim in a § 2255
proceeding. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011); see also
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (“Courts have long and
consistently affirmed that a collateral challenge, such as a § 2255 motion, may not
be a surrogate for a direct appeal. Because collateral review is not a substitute for a
direct appeal, the general rules have developed that (1) a defendant must assert all
available claims on direct appeal, and (2) relief under [] § 2255 is reserved for
transgressions of constitutional rights and for that narrow compass of other injury
that could not have been raised in direct appeal and would, if condoned, results in a
complete miscarriage of justice.”) (internal citations and quotation marks omitted).
In Flowers’ case, the issue of whether the Court should have considered a
guidelines amendment in determining an appropriate sentence in the revocation

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case could have been reviewed without further factual development on direct
appeal. Flowers, however, failed to advance this claim on appeal. Indeed, he never
even raised it at the time sentence was pronounced with regard to the revocation
proceeding. See Doc. 145 (Revocation Hearing Transcript) in United States v.
Flowers, 2:96-cr-00089-LSC-JHE-2. Since Flowers failed to seek appellate review
of this matter, the issue is now procedurally defaulted.
While Flowers could overcome this hurdle if he could show cause for having
not raised the claim on direct appeal and actual prejudice resulting from the alleged
error, see Lynn, 365 F.3d at 1234, he makes no effort in this regard. Having failed to
do so, his claim is barred and no relief is due to be granted.
III.

Conclusion
For the reasons stated above, the § 2255 motion is due to be denied.

Additionally, the Court declines to issue a certificate of appealability. This Court
may issue a certificate of appealability “only if the applicant has a made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a showing, a “petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El

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v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). Flowers’ claim
does not satisfy either standard. Accordingly, insofar as an application for a
certificate of appealability is implicit in Flowers’ motion, it is due to be denied.
A separate closing order will be entered.
DONE and ORDERED on October 16, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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