Bowden v. USA - 2255
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/4/2017. (c/m 12/04/2017 - jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 15-0811
Criminal No. DKC 14-0031
UNITED STATES OF AMERICA
Presently pending and ready for resolution is a motion to
vacate sentence filed by Petitioner Marvin Bowden (“Petitioner”)
pursuant to 28 U.S.C. § 2255.
(ECF No. 41).
For the following
reasons, the motion will be denied.
On February 5, 2014, Petitioner pled guilty pursuant to a
plea agreement in which he waived indictment and pled guilty to
distribute five kilograms or more of cocaine (“Count 1”) and of
conspiracy to use and carry a firearm in the furtherance of a
drug trafficking crime and during and in relation to a crime of
violence (“Count 2”).
On July 21, Petitioner was sentenced to
120 months imprisonment, concurrent on Counts 1 and 2.
19, 2015, Petitioner filed the pending motion to vacate his
sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 41).
government was directed to respond to the motion and did so on
(ECF No. 48).
Standard of Review
To be eligible for relief under § 2255, a petitioner must
show, by a preponderance of the evidence, that his “sentence was
imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized by law.”
28 U.S.C. § 2255(a).
A pro se movant, such
as Petitioner, is entitled to have his arguments reviewed with
1151–53 (4th Cir. 1978).
See Gordon v. Leeke, 574 F.2d 1147,
But if the § 2255 motion, along with
the files and records of the case, conclusively shows that he is
not entitled to relief, a hearing on the motion is unnecessary
and the claims raised in the motion may be dismissed summarily.
Ineffective Assistance of Counsel
Petitioner alleges that his decision to plead guilty was
the result of ineffective assistance of counsel.
(ECF No. 41,
To establish ineffective assistance of counsel, the
petitioner must show both that his attorney’s performance fell
suffered actual prejudice.
Strickland v. Washington, 466 U.S.
668, 687 (1984).
There is a strong presumption that counsel’s
conduct falls within a wide range of reasonably professional
conduct, and courts must be highly deferential in scrutinizing
Strickland, 466 U.S. at 688–89; Bunch v.
Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).
need not be made concerning the attorney’s performance if it is
Strickland, 466 U.S. at 697.
prejudice by demonstrating “a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.”
Hill v. Lockhart, 474 U.S.
52, 59 (1985); accord United States v. Mooney, 497 F.3d 397, 401
(4th Cir. 2007).
Moreover, Petitioner “must convince the court”
Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
dispositive; what matters is whether proceeding to trial would
have been objectively reasonable in light of all of the facts.
United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012).
burden in establishing an ineffective assistance claim.
process brings to the criminal justice system a stability and a
Moore, 562 U.S. 115, 132 (2011).
Thus, a petitioner alleging
ineffective assistance in the context of a guilty plea must meet
a “substantial burden . . . to avoid the plea[.]”
obtaining relief” for his co-defendants.
(ECF No. 41, at 2).
Petitioner argues that he “was prejudiced as a result of his
counsel’s errors because had he been advised . . . he too would
have insisted on going to trial and thereby would have obtained
the same exact relief as his co-defendants.”
defendants were found guilty of all charges and sentenced to
longer terms of imprisonment than Petitioner.
Hare, 820 F.3d 93, 97 (4th Cir. 2016).
United States v.
Moreover, Petitioner was
not prejudiced by pleading guilty because it was not objectively
reasonable in light of the circumstances to proceed to trial.
If Petitioner had insisted on proceeding to trial, he would have
been charged with four charges rather than just the two to which
overwhelming on all four charges and Petitioner was the lead
member of the conspiracy, recruiting his co-defendants to commit
the robbery of the purported drug stash house.
Hare, 820 F.3d
Had the jury been presented with this and other
evidence of Petitioner’s guilt, it almost certainly would have
found Petitioner guilty on all charges along with the rest of
Thus, Petitioner would have faced a sentence
for a much longer term of imprisonment than what he received.
decision may not be lightly undone by buyer’s remorse on the
part of one who has reaped advantage from the purchase.”
703 F.3d at 260.
Petitioner cannot show that proceeding to
trial would have been rational under the circumstances and thus
his ineffective assistance claim fails for lack of prejudice.1
A determination need not be made concerning the attorney’s
performance when it is clear that no prejudice could have
resulted from some performance deficiency. Strickland, 466 U.S.
Petitioner next argues that the sentence he received for
Count 1 was disproportionate to that which his co-defendants
(ECF No. 41, at 2-3).
Petitioner argues that counsel
disparity in the district court or on direct appeal.
Petitioner’s argument is without merit because Petitioner
was convicted of conspiracy to possess with intent to distribute
five kilograms or more of cocaine, while his co-defendants were
distribute more than 500 grams but less than five kilograms of
cocaine, Verdict Form, United States v. Hare, No. DKC-13-0650,
statutory mandatory minimum sentence of 120 months imprisonment,
28 U.S.C. § 841(b)(1)(A)(ii), while his co-defendants faced a
statutory minimum sentence of 60 months imprisonment on that
count, 28 U.S.C. § 841(b)(1)(B)(ii).
was sentenced months before the sentencing of his co-defendants.
“The sentencing factor addressing sentencing disparities,
sentences of co-defendants.”
United States v. Robinson, 537
F.App’x 249, 251 (4th Cir. Aug. 8, 2013) (citing United States v.
Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); United States v.
Petitioner is not entitled to relief on the ground that the
court created an unwarranted sentencing disparity between him
and his co-defendants, and thus counsel’s performance was not
objectively unreasonable on this ground.
See Fugit, 703 F.3d at
Validity of Plea Agreement
Lastly, Petitioner argues that “because the drug dealer and
drugs in this case were ‘non-existent’, the court should not
have allowed the parties to stipulate to their existence.”
No. 41, at 3).
Petitioner cites to the commentary to Section
appropriate for the parties to stipulate to misleading or nonexistent facts, even when both parties are willing to assume the
Petitioner argues that the alleged stipulation to non-existent
facts rendered the plea agreement invalid.
First, the parties did not stipulate to the existence of a
purported to be a drug courier who regularly transported drugs
Petitioner voluntarily and knowingly agreed to the stipulation
of facts when he signed the plea agreement.
(ECF No. 23, at 4-
At no time did petitioner object to, or express concern
about, the validity of the fact stipulation, and he cannot do so
2635235, at *4 (D.Md. June 11, 2013) (citing Fields v. Attorney
Gen. of Md., 956 F.3d 1290, 1299 (4th Cir. 1992)).
counsel did not render ineffective assistance when he did not
object to the stipulation of facts in the plea agreement.
To the extent that Petitioner intended to argue that the
impossibility is not a defense to the crime of conspiracy.
United States v. Min, 704 F.3d 314, 321-22 (4th Cir. 2013).
For the foregoing reasons, the motion to vacate sentence
filed by Petitioner Marvin Bowden will be denied.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. §§ 2254 or 2255, the court is also required to
issue or deny a certificate of appealability when it enters a
appealability is a “jurisdictional prerequisite” to an appeal
from the court’s order.
United States v. Hadden, 475 F.3d 652,
659 (4th Cir. 2007).
A certificate of appealability may issue
“only if the applicant has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
Where the court denies the petitioner’s motion on its merits, a
Cockrell, 537 U.S. 322, 336–38 (2003).
Petitioner does not satisfy the above standard.
declines to issue a certificate of appealability.
order will follow.
DEBORAH K. CHASANOW
United States District Judge
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