Bowen v. United States of America

Filing 23

ORDER overruling Movant's Objections contained in the document entitled "Petitioner Reply to Government Rebuttal to Motion for Return of Personal Property." (Doc. 22 ) FURTHER ORDERED incorporating the Report and Recommendation of the Magistrate Judge as the Order of this Court. (Doc. 21 ) FURTHER ORDERED that Movant's Amended Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 is denied. (Doc. 4 ) IT IS FURTHER ORDERED that Movant's Motion for Return of Seized Personal Property is denied. (Doc. 20 ) IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal regarding the § 2255 motion is denied because Movant has not made a substantial showing of the denial of a constitutional right. Signed by Judge Susan R Bolton on 7/24/2013. (KMG)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff/Respondent,

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v.

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No. CV11-02252-PHX-SRB
CR09-00679-PHX-SRB
ORDER

Sandra Marie Bowen,

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Defendant/Movant.

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Movant, Sandra Marie Bowen, filed an Amended Motion under 28 U.S.C. § 2255

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to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody on January 3,

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2012. (Doc. 4) She raised two grounds. Movant alleged that her lawyer was ineffective

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for failing to properly raise a Fourth Amendment issue under Arizona v. Gant and that her

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lawyer was ineffective in failing to warn her about the deportation consequences of her

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guilty plea and in failing to secure a plea agreement that would have avoided this

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collateral consequence. The United States filed a Motion to Dismiss and Response in

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Opposition to Movant’s Motion to Vacate (Doc. 15) and Movant filed a Reply (Doc. 19).

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On April 12, 2013, Movant filed a Motion for Return Seized Personal Property

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(sic) (Doc. 20) requesting the return of items of personal property that were seized at the

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time the vehicle she was riding in was stopped on June 1, 2009.

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On May 15, 2013, the Magistrate Judge issued his Report and Recommendation

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recommending that both motions be denied. (Doc. 21) With respect to Movant’s § 2255

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motion, the Magistrate Judge found both Movant had expressly waived her rights to file

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this motion in her plea agreement and, on the merits, Movant had failed to establish
ineffective assistance of counsel. The Magistrate Judge also recommended denial of the
Motion to Return Seized Personal Property because Movant’s plea agreement expressly
provided for the forfeiture of any property seized by the Government in the course of its
investigation and Movant expressly agreed to the forfeiture of these items in her plea
agreement and during her plea colloquy.
On June 6, 2013, Movant filed a document entitled “Petitioner Reply to
Government Rebuttal to Motion for Return of Personal Property” (Doc. 22) which the
Court has considered Movant’s objections to the Report and Recommendation of the
Magistrate Judge. With respect to the recommendation that her Motion for return of
seized personal property should be denied, Movant argues that Special Agent Jose
Melendez had offered to return the personal property that was in the rental car on the date
of her arrest.
With respect to the recommendation for denial of her § 2255 motion, Movant
raises an entirely new argument of alleged ineffective assistance of counsel not raised in
her § 2255 motion. Movant now argues that she signed the plea agreement because she
thought it was for a 10 year prison term, if she did not sign it her son would get 30 years
in prison and she would get life, and she did not receive a two-level decrease in her
advisory guideline range under U.S.S.G §3E1.1(a) for acceptance of responsibility,
Movant argues that had she received that adjustment her sentence would have been 8
years less. None of the arguments in Movant’s document entitled “Petitioner Reply to
Government Rebuttal to Motion for Return of Personal Property” address the Report and
Recommendation of the Magistrate Judge or object to any of the facts or legal
conclusions upon which the recommendation is based. Movant cannot raise new
arguments in her Objection not presented in her § 2255 motion. Even if the Court were
to consider these arguments they are plainly without merit.1
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Movant’s advisory guideline range included a 3 level downward adjustment
under U.S.S.G.§ 3E1.1(a) for acceptance of responsibility. Under the guidelines her total
offense level was 43 and her criminal history category was 1 resulting in a guideline
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After review of the Motion, Response, Reply, the Magistrate Judge’s Report and
Recommendation, and Movant’s Objections, the Court finds that the Objections are
without merit. The Court agrees with the Report and Recommendation of the Magistrate
Judge. Therefore;
IT IS ORDERED overruling Movant’s Objections contained in the document
entitled “Petitioner Reply to Government Rebuttal to Motion for Return of Personal
Property.” (Doc. 22)
IT IS FURTHER ORDERED incorporating the Report and Recommendation of
the Magistrate Judge as the Order of this Court. (Doc. 21)
IT IS FURTHER ORDERED that Movant’s Amended Motion to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255
is denied. (Doc. 4)
IT IS FURTHER ORDERED that Movant’s Motion for Return of Seized Personal
Property is denied. (Doc. 20)
IT IS FURTHER ORDERED that a Certificate of Appealability and leave to
proceed in forma pauperis on appeal regarding the § 2255 motion is denied because
Movant has not made a substantial showing of the denial of a constitutional right.

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Dated this 24th day of July, 2013.

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recommended sentence of life. Movant’s actual sentence was 216 months.
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