Bowden v. USA - 2255

Filing 2

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
:
MARVIN BOWDEN
:
v.

:

Civil Action No. DKC 15-0811
Criminal No. DKC 14-0031

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
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.
I.

Background
On February 5, 2014, Petitioner pled guilty pursuant to a

plea agreement in which he waived indictment and pled guilty to
the

charges

of

conspiracy

to

possess

with

the

intent

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.

On March

19, 2015, Petitioner filed the pending motion to vacate his
sentence pursuant to 28 U.S.C. § 2255.

(ECF No. 41).

The

government was directed to respond to the motion and did so on
July 27.
II.

(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
appropriate consideration.
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.
§ 2255(b).
III. Analysis
A.

Ineffective Assistance of Counsel

Petitioner alleges that his decision to plead guilty was
the result of ineffective assistance of counsel.
at 2).

(ECF No. 41,

To establish ineffective assistance of counsel, the

petitioner must show both that his attorney’s performance fell
below

an

objective

standard

suffered actual prejudice.

of

reasonableness

and

that

he

Strickland v. Washington, 466 U.S.

2

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
counsel’s performance.

Strickland, 466 U.S. at 688–89; Bunch v.

Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).

A determination

need not be made concerning the attorney’s performance if it is
clear

that

no

prejudice

performance deficiency.
In

the

conviction

context

following

could

have

resulted

from

some

Strickland, 466 U.S. at 697.
of

a

a

§

2255

guilty

petition

plea,

a

challenging

defendant

a

establishes

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).
that

such

a

circumstances.”
Petitioner’s

Moreover, Petitioner “must convince the court”

decision

“would

have

been

rational

under

the

Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
subjective

preferences,

therefore,

are

not

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).
A

petitioner

who

pleads

guilty

has

an

especially

burden in establishing an ineffective assistance claim.
Supreme

Court

of

the

United

States

3

explained,

high

As the

“[t]he

plea

process brings to the criminal justice system a stability and a
certainty

that

collateral
evidence

must

not

challenges

were

not

be

in

undermined

cases

presented

in

.

.

the

Moore, 562 U.S. 115, 132 (2011).

by

.

the

where

first

prospect
witnesses

place.”

Premo

of
and
v.

Thus, a petitioner alleging

ineffective assistance in the context of a guilty plea must meet
a “substantial burden . . . to avoid the plea[.]”
Petitioner
objectively
adequate
defenses

argues

that

unreasonable

factual
of

and

because

legal

prosecutorial

profiling,

and

selective

Petitioner

of

those

his

counsel’s
counsel

performance

failed

investigations
misconduct,

prosecution

defenses,

to

to

failed

were

obtaining relief” for his co-defendants.

to

was

conduct

discover

entrapment,

and

which

Id.

the

racial
inform

“successful

in

(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.”
defenses
profiling,
obtaining

of
and

prosecutorial
selective

relief

for

his

misconduct,

prosecution

(Id.).

First, the

entrapment,

were

co-defendants.

not

racial

successful

Petitioner’s

in
co-

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).

4

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
he

pleaded

guilty.

The

evidence

against

Petitioner

was

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.
at 95-96.

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
his co-defendants.

Thus, Petitioner would have faced a sentence

for a much longer term of imprisonment than what he received.
“Pleading
accept

guilty

both

the

generally
benefits

involves
and

a

burdens

conscious
of

a

decision

bargain.

to

That

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.

Fugit,

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

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.
at 697.
5

B.

Sentencing Disparity

Petitioner next argues that the sentence he received for
Count 1 was disproportionate to that which his co-defendants
received.
was

(ECF No. 41, at 2-3).

ineffective

for

not

Petitioner argues that counsel

raising

the

issue

of

sentencing

disparity in the district court or on direct appeal.

(Id., at

3).
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
each

convicted

of

conspiracy

to

possess

with

intent

to

distribute more than 500 grams but less than five kilograms of
cocaine, Verdict Form, United States v. Hare, No. DKC-13-0650,
(ECF

No.

199,

at

2-3).

As

a

result,

Petitioner

faced

a

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).

Furthermore, Petitioner

was sentenced months before the sentencing of his co-defendants.
“The sentencing factor addressing sentencing disparities,
18

U.S.C.

national

§

3553(a)(6),

sentencing

is

aimed

inequity,

sentences of co-defendants.”

not

primarily

at

differences

eliminating
between

the

United States v. Robinson, 537

F.App’x 249, 251 (4th Cir. Aug. 8, 2013) (citing United States v.

6

Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); United States v.
Simmons,

501

F.3d

620,

(6th

623-24

Cir.

2007)).

Therefore,

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

259-60.
C.

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).
6B1.4

of

the

(“Sentencing

(ECF

Petitioner cites to the commentary to Section
United

States

Guidelines”),

Sentencing

which

Commission

provides

that

Guidelines

“it

is

not

appropriate for the parties to stipulate to misleading or nonexistent facts, even when both parties are willing to assume the
existence

of

such

‘facts’

for

purposes

of

the

litigation.”

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
drug

dealer

and

drugs,

but

rather

that

an

undercover

agent

purported to be a drug courier who regularly transported drugs
to

drug

agreement

dealers.
does

not

(ECF

No.

contain

23-1,

at

1).

“non-existent

7

Thus,

facts.”

the

plea

Moreover,

Petitioner voluntarily and knowingly agreed to the stipulation
of facts when he signed the plea agreement.
5, 8).

(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
now.

See

Bass

v.

United

States,

No.

RDB-12-2984,

2013

WL

2635235, at *4 (D.Md. June 11, 2013) (citing Fields v. Attorney
Gen. of Md., 956 F.3d 1290, 1299 (4th Cir. 1992)).

Petitioner’s

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
fabrication
factually
Appeals

of

the

existence

impossible
for

the

to

of

commit,

Fourth

drugs

the

Circuit

rendered

United
has

the

States

held

that

crime

Court

of

factual

impossibility is not a defense to the crime of conspiracy.

See

United States v. Min, 704 F.3d 314, 321-22 (4th Cir. 2013).
IV.

Conclusion
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
final

order

adverse

to

the

petitioner.

A

certificate

of

appealability is a “jurisdictional prerequisite” to an appeal
from the court’s order.

United States v. Hadden, 475 F.3d 652,

8

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
petitioner
reasonable

satisfies
jurists

this

would

constitutional

claims

McDaniel,

U.S.

529

standard

find

the

debatable

473,

484

by

demonstrating

court’s

or

assessment

wrong.

(2000);

see

See
also

that

of

the

Slack

v.

Miller–El

v.

Cockrell, 537 U.S. 322, 336–38 (2003).
Upon

its

review

of

the

record,

the

court

Petitioner does not satisfy the above standard.

finds

that

Accordingly, it

declines to issue a certificate of appealability.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

9