McGowan v. United States of America

Filing 9

ORDER dismissing as time barred 1 Motion to vacate, set aside, or correct sentence (2255). Because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis. Clerk shall close the file. Signed by Judge James S. Moody, Jr on 6/21/2011. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

THOMAS McGOWAN,
Petitioner,
v.

CASE NO: 8:10-CV-2526-T-30EAJ
Crim. Case No: 8:04-CR-156-T-30EAJ

UNITED STATES OF AMERICA,
Respondent.
____________________________________/

ORDER
THIS CAUSE comes before the Court upon Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. §2255 filed on November 10, 2010, Petitioner’s
Memorandum and Brief in Support of Title 28 U.S.C. §2255 Relief filed on November 10,
2010, Petitioner’s Affidavit filed on November 10, 2010, and the United States’ Response
in Opposition to [McGowan’s] Motion to Vacate, Set Aside, or Correct Sentence, Pursuant
to 28 U.S.C. § 2255 filed on February 15, 2011.
BACKGROUND
Petitioner Thomas McGowan pled guilty without a plea agreement to a charge of
intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B)(iii). This court accepted the plea and adjudged McGowan guilty.

On September 1, 2004, this Court sentenced McGowan to 188 months of
imprisonment, to be followed by a 60-month term of supervised release. This sentence was
based on the designation of McGowan as a career offender, pursuant to USSG § 4B1.1. On
September 8, 2004, McGowan filed a notice of appeal, and on July 12, 2005, the Eleventh
Circuit vacated and remanded the case because this Court, in error, had treated the sentencing
guidelines as mandatory. In fact, in the original sentencing, this Court stated that the
sentence imposed was based on mandatory guidelines, and but for the mandatory guidelines,
the sentence would have been for a lesser period of time.
On August 26, 2005, McGowan was resentenced to 180 months of imprisonment, to
be followed by a 60-month term of supervised relief. This Court entered final judgment on
August 29, 2005. On August 31, 2005, McGowan appealed. The Eleventh Circuit affirmed
the sentence on January 23, 2007. The Supreme Court subsequently vacated the judgment
and remanded the case to the Eleventh Circuit for further consideration in light of new case
law holding that a district court does not abuse its discretion if it disagrees, as a matter of
policy, with the Guidelines crack/powder disparity. The Eleventh Circuit then vacated and
remanded the case to this Court for further consideration of the crack/powder issue.
On July 14, 2008, this Court entered the sentence it had previously imposed on August
26, 2005. McGowan again appealed. On February 17, 2009, the Eleventh Circuit affirmed
McGowan’s sentence. On November 10, 2010, McGowan filed the §2255 petition that is the
subject of this Order.

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DISCUSSION
Timeliness
Section 2255 has a one year statue of limitations. McGowan contends that under §
2255(f)(3), the appropriate date for the start of the statutory period is March 2, 2010, the date
the Supreme Court decided Johnson v. United States, _____ U.S._____, 130 S.Ct. 1265
(2010). CV Dkt. #1, p. 9.
The statute of limitations may begin to run on “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.” 28
U.S.C. 2255(f)(3) (emphasis added). Petitioner contends that under Johnson, an aggravated
assault charge used in determining his status as a career offender, would not qualify as a
“crime of violence,” and that therefore, Petitioner is “actually innocent” of being a career
offender. McGowan argues that this “actual innocence” is a newly discovered right for the
purposes of § 2255(f)(3), and seems to argue that Johnson should apply retroactively.
McGowan’s claim fails for several reasons.
Newly Discovered Right
First, McGowan is incorrect. Aggravated assault is a crime of violence. See USSG
§ 4B1.2(a) and comment, (n.1) (specifically listing “aggravated assault” as a crime of
violence). McGowan argues that under Johnson, aggravated assault might not be a crime of
violence. McGowan misinterprets Johnson. Johnson holds that in Florida, simple battery,

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which can involve a mere touch, does not necessarily involve the amount of physical force
necessary to qualify as a violent felony. Johnson does not discuss aggravated assault, and
because aggravated assault is specifically listed as a crime of violence, it is an appropriate
predicate for career offender status.
Second, McGowan misconstrues the meaning of “actual innocence.”

Actual

innocence applies to the person who is factually innocent of the charge for which he was
incarcerated. See Schulp v. Delo, 513 U.S. 298, 321 (1995); Bousley v. United States, 523
U.S. 614, 623 (1998) (stating “[a]ctual innocence means factual innocence, not mere legal
insufficiency). McGowan does not claim to be innocent of the charge to which he pled guilty,
only the sentencing enhancement applied to him. “Actual innocence” does not apply to a
sentencing enhancement like the career offender designation. See Gilbert v. United States,
_____ F.3d _____, No. 09-12513, 2011 WL 1885674 (11th DCA May 19, 2011).
And even if the aggravated assault had been excluded from the PSR, McGowan would
still have been sentenced as a career offender. In order to be a career offender, the defendant
must have been at least eighteen years old at the time the defendant committed the instant
offense of conviction, the instant offense of conviction must be either a crime of violence or
a controlled substance offense, and the defendant must have had at least two prior felony
convictions of either a crime of violence or a controlled substance offense. USSG §
4B1.1(a). At the sentencing hearing, McGowan stipulated that he was over the age of 18,
and the instant offense of conviction was a controlled substance offense. Finally, and most

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significantly, McGowan had three other qualified felony controlled substance offenses.1
Consequently, even if the aggravated assault charge was excluded entirely from the PSR
calculations, McGowan would still qualify as a career offender.
Retroactive Applicability
In order for McGowan to find relief in a new rule, the Supreme Court would have
needed to hold that it applied retroactively. See Tyler v. Cain, 533 U.S. 656, 663 (2001)
(stating “a new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme
Court holds it to be retroactive.”) Nothing in the Johnson decision indicates that the
Supreme Court intended for the holding to apply retroactively. Thus, even if Johnson were
applicable in this case (which it is not), McGowan could not find relief in its pages.
McGowan therefore does not have a newly discovered right, retroactively applicable,
that would entitle him to use July 14, 2008, pursuant to §2255(f)(3), as the starting date for
the statute of limitations.
The correct starting date is the date on which the judgment of conviction became final,
May 18, 2009, ninety days after the Eleventh Circuit affirmed his judgment. McGowan did
not file this §2255 petition until November 10, 2010, more than one year after his judgment
became final. The statue of limitations has run.

1

Excluding the aggravated assault, petitioner’s prior convictions included (1) Attempted Sale of Cocaine, a
felony controlled substance offense; (2) Possession of Cocaine with Intent to Sell or Deliver, a felony controlled
substance offense; and (3) Sale of Cannabis, a felony controlled substance offense.

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Accordingly, this appeal is not timely filed and must be dismissed. By way of
explanation to the petitioner, the merits will be discussed below. Even if this court had
considered this case on the merits, the motion would still have been denied.
Merits
Ground One:

Ineffective assistance of counsel for failure to object and argue that
an aggravated assault charge was being incorrectly used in the PreSentence Investigation Report.

McGowan alleges a denial of his constitutional Sixth Amendment right to counsel.
The standard to determine whether the right to effective assistance of counsel has been
violated is “whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984). Counsel is presumed competent to
assist a defendant; the burden is on the petitioner to demonstrate the denial of the effective
assistance of counsel. United States v. Cronic, 466 U.S. 648, 658 (1984). To vacate the
conviction, the petitioner must show “by a preponderance of competent evidence,” Chandler
v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000), that (1) counsel’s performance fell
below an objective standard of reasonable professional assistance and (2) Petitioner was
prejudiced by the deficient performance. Strickland, 466 U.S. 668 at 687, 694.
To satisfy the prejudice prong under Strickland, the accused must establish that there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “There is no reason for a court deciding

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an ineffective assistance claim...to address both components of the inquiry if the defendant
makes an insufficient showing in one.” Id. at 697.
McGowan’s argument fails to demonstrate that, but for counsel’s failure to object and
argue that the aggravated assault should not be considered in his PSR, the result of the
sentencing proceeding would have been different. This argument fails for two reasons. First,
aggravated assault is a crime of violence and any objection by his attorney on this ground
would have been denied. Second, even if the aggravated assault charge had been excluded
from the guideline calculations, McGowan would still have been considered a career offender
under the guidelines.
Therefore, failure to object to the use of the aggravated assault in the PSR had no
effect on the outcome of the sentencing hearing, and did not prejudice McGowan.
Additionally, Petitioner is factually wrong. The transcript of the sentencing hearing
reflects that McGowan’s counsel did in fact object to the application of the “career offender”
designation. (CR Dkt. #33 at 8, lines 9-6, and more generally at 8-10)
Accordingly, this argument has no merit. Even if this petition had been timely filed,
Ground One would be denied.
Ground Two:

Petitioner’s “actual innocence” of being a career offender.

McGowan claims that he is “actually innocent” of being a career offender, and that
his characterization as a career offender unjustly affected his sentence. This argument is
incorrect as explained above.

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Accordingly, even if this petition had been timely filed, Ground Two would be denied.
Ground Three:

Equal Protection violation in sentencing crack and powdered
cocaine differently.

McGowan argues that racism is inherent in sentencing crack and powdered cocaine
differently, and that this Court erred in applying his sentence without considering this
disparity. Petitioner argues that this is a violation of his equal protection rights.
But this argument does not apply to McGowan’s sentencing. McGowan’s guideline
calculations were properly calculated pursuant to the career offender provision found in
USSG §4B1.1, and not under the drug provision in §2D1.1. When the career offender
enhancement applies, sentences are the same for crack and powder offenses. Therefore,
McGowan cannot say that he has been harmed by the crack/powder disparity in the
guidelines.
Petitioner further argues that he never admitted the substance was crack, and therefore
a sentence for an offense involving crack cocaine is incorrect. However, the sentencing
transcripts show that McGowan did stipulate that the substance was 41.3 ounces of crack
cocaine, so this argument also fails. CR Dkt. #33 at p. 26-27.
CONCLUSION
It is therefore ORDERED AND ADJUDGED that:
1.

Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. §2255 (CV Dkt. #1) is DISMISSED as time barred.

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2.

The Clerk is directed to terminate from pending status the motion to vacate
found at CR Dkt.#69, in the underlying criminal case, case number 8:04-CR156-T-30EAJ.

3.

The Clerk is directed to close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a certificate of appealability (COA). Id. "A [COA] may issue...only if the
applicant has made a substantial showing of the denial of a constitutional right." Id. at §
2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong,"
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed
further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these
circumstances.

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Finally, because Petitioner is not entitled to a COA, he is not entitled to appeal in
forma pauperis.
DONE and ORDERED in Tampa, Florida on June 21, 2011.

Copies furnished to:
Counsel/Parties of Record
F:\Docs\2010\10-cv-2526.deny 2255.wpd

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