Dowell v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/2/2018. (c/m 2/2/2018 heps, Deputy Clerk)

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IN TIlE UNITED STATES DISTRICT CO.l1lU IC! "
FOI{ TIlE J)ISTI{ICT OF MARYLAND
Southern Division
1018FEB -

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.JAI)J)AI DOWELL,

Crim No.: (;./II-J(,-21111
Civ No,: G./II-17-1-t7-t

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Petitioner,

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v,

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UNITED STATES

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Respondent.

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MEMORANDUM
On May 30. 2017. Pctitioncr
Correct Sentcncc
opposition

on August

hearing is ncccssary
Pctitioncr's

I.

-to

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OPINION

Jaddai Dowelililcd

Pursuant to III U.S.c.

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a Motion to Vacatc. Sct Asidc or

~ 2255. ECF No. 64. Thc Govcrnmcnt

2017. ECF No. 67. to which Petitioncr

to rcsolvc thc Motion. See 2ll U.S.c.

lilcd a bricl' in

has not li1cd a rcsponsc.

~ 2255(b).

No

For thc rcasons that I'ollow.

Motion will bc dcnicd.'

BACKGROUND
On March 22. 2016. Dowcll walkcd on to thc Suitland

Suitland.

Maryland

possession.

ECF No. 67-1 at 9 (Pica Agrccmcnt

in Scptcmber

01' 200ll. was convictcd

Scction 2911.02.
maximum

when a Fcdcral Protcctivc

Fcdcral Ccntcr propcrty

in

Scrvice oflicer stopped him and I<llmd a gun in his
Stipulatcd

01' robbcry/complicity

/l!. Because Dowcll had bccn prcviously

pcnalty 01' more than onc ycar imprisonmcnt.

Facts).~ Prior to this incidcnt.

Dowell.

in violation 01' Ohio Reviscd Codc
convictcd

ol'an offcnsc carrying a

and his civil rights had not bccn

1 Petitioner has also liIed a f\lotion 10 Appoint .knnifcr Wicks as coullsei. ECF No. 65. Th~ Court will granllhilt
Motioll and has accepted the Motioll10 Vacnle liled by Attorney Wicks 011 Petitioncr's behalr.
2 Pin cites to doculllents liIed on the Court"s electronic liIillg systcm (Cf\l!ECF) refer to the ragc numbcrs gcm.'ratcd
by that system.

restored. he was ineligible
possession

to possess a lireann and ammunition

of a firearm by a convicted

Dowell. while represented
Defender.

felon in violation of 18 U.S.c.

~ 922(g)( 1).

by Attorney John Chamble of the Oniee of the Federall'ublie

entered a plea of guilty pursuant to an agreement

2016. In the agreement.

and charged with one count of

Dowell expressly

with the Government

on August 5.

waived his right to appeal his sentence as fl)IIO\\'s:

The Defendant and this Oniee knowingly waive all right. pursuant to 18 U.S.c.
~ 3742 or otherwise. to appeal \\'hatever sentence is imposed (including the right
to appeal any issues that relate to the establishment of the advisory guidelines
range. the determination of the Defendant's criminal history. the weighing of the
sentencing factors. and the decision whether to impose and the ealeulation of any
term of imprisonment.
fine. order of forfeiture. order of restitution. and term or
condition of supervised release). except as 1l)lIows: (i) the Defendant rescrves the
right to appeal any term of imprisomnent above the advisory guidelines range
resulting from an adjusted base offense level of 17: (ii) and this Oflice reserves
the right to appeal any term of imprisonment below the advisory guidelines range
resulting from an adjusted base offense level of 12.
ECF No. 67-1 at6.
At the August 5 hearing. the Court engaged
Federal Rule of Criminal
was "waiving
resulting

Procedure

in a colloquy

11 whereby thc Court asked Dowell if he was aware that he

all rights to appeal any term of imprisonment

from an adjusted

thaI he understood.

Dowell's

Guidelines

("U.S.S,G")

violence,"

Dowell disagreed

above the advisory guideline

range

base offense level of 17," ECF NO.6 7-2 at 17-18. Dowell indicated

!d As set !l)rth in the plea agreement.

base offense levelll)r

with Dowell as required by

charge \\'as 20 pursuant

~ 2K2.I(a)(4)(A)

the Government's

to the United States Sentencing

because his 2008 conviction

lhat the prior conviction

position was that the

was"a

crime of

was a crime of violence and posited that

the base offense level should be 14. !d at 4. Thc agreement

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also noted thaI the Government

would not oppose a three level reduction for acceptance ofresponsihility

if the Court determined

the base ol1ense level was 20. ECF No. 67-1 at 4.3
The case came hefi.)re the Court for sentencing on October 13. 2016. While United States
Probation prepared a presentence repol1 with a recommended base offense level of 14. alier
eoneluding that the 2008 conviction was not a crime of violence. the G(1\"ermnent ohjeeted
consistent with its position in the plea agreement. See ECF No. 67-3 at 4 (Sentencing llearing
Transcript). Alier oral argument. the Court found that Dowel\"s prior conviction under the Ohio
Robbery Statute was a crime of violence for sentencing purposes and designated a base offense
level 01'20. Id. at 15. The Court reduced the offense level hy 3-levels to an olknse level of 17
based on acceptance of responsibility. Further. it was agreed that Dowell was in criminal history
category III. which the Court ealeulated to result in a sentencing guideline range of30-37
months. Id. Ultimately. the Court departed downward li'om this range and sentenced Dowell to a
period ofn

months. Id. at 26. Had the Court adopted Dowel\"s recommended base offense level

of 14. and a two-level reduction as agreed to by the Government. he would have been sentenced
under a guidelines range of 15-21 months.
Following sentencing. Dowell tiled an appeal as to whether his prior eOlH"ietionunder the
Ohio Robbery Statute constituted a crime of violence. Ilowever. on April 10.2017. the Fourth
Circuit li.nmd that Dowell had waived his right to appeal as a parl of his plea agreement and
dismissed the appeal without addressing the merits. See United Slales \'. f){}\l'ell. No. 16-4703
(4th Cir. April 10. 2(17) (provided as ECF No. 67 -4). Dowell's Petition 1i.)lIowed.

-' (fthe C01ll1 had adopted the defense's position that the base offense lc\'cI was 14.lhe Government did
a two level reduction for acceptance ofrcspollsibility. ECF No. 67-1 at ..•.

Ilot

oppose

II.

DISCUSSION
In order to be entitled to relierunder

preponderance

or the evidence

28 U.S.c.

that ..the sentence

~ 2255. a petitioner

was imposed

in violation of the Constitution

laws of the United States. or that the court was without jurisdiction
that the sentence

a/so UniledSlales

was in excess orthe
I'.

.l/oore.993

maximum

authorized

must prove by a
or

to impose such sentence. or
~ 2255(a): see

by law:' 28 U.S.c.

F.2d 1541 (4th Cir. 19'>3) (unpublishcd)

(citing I/ana/a \'.

Bo/es. 377 F.2d 898 (4th Cir. 19(7)). Dowell advances three theories in support of his motion: 1)
his conviction
sentence

was imposed in violation

assistance

or counsel: 2) his

was invalid because the Court errorcd in finding that his 2008 conviction

crimc or violence:

A. Ineffective

Assistance

was appealable.

under thc Sixth Amendment.
assistance

incorrectly

advised him that the Court's

an error. he argues. constituting

See ECF No. I ~ 3: ECF NO.1-I.

standard or reasonableness.

runctioning

Dowcllmust

ineffeetive

assistance

or counsel

To succced on an ineffective
perrormance

made errors so rundamental

tell below an

by the Sixth Amendment."

that counscl was not

Harringlon

U.S. 86. 88 (201 I) (citing Slrickland. 466 U.S, at (94). The core qucstionunder
representation

crime or violence

Slricklmul, .. Washing/on. 466 U.S. 668. 669 ( 1984),

show that "counsel

as the counsel guaranteed

whethcr "an attorney's

','i

of Counsel

or counscl claim. Dowell must lirst sho\\' that his counsel's

Spccitically.

a

in turn.~

Dowell alleges that Chamble
determination

constituted

See ECF No. I

and 3) his appeal waiver was not knowing and voluntary,

13-15. Each theory is addressed

objective

or his right to errcctive

amounted

to incompetcnce

I'.

Richla. 562
Slrickland is

under prevailing

prolessional

.1 Dowell
also requests discovel)' and an evidentiary hearing. ECF No. I ~ 16. This request will be denied because
where a ~ 2255 petition. along \\lith the tiles and records urihe casco conclusively shows Ihe petitioner is not cnlilkd
to reliet: a hearing on thl' motion is unnecessary and the claims raised therein may be dismissed summarily . .\"I..'e 28
U.S.c. 2255(b).

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norms. not whether it deviated Irom best practices or most common custom" !d. Dowell must
also demonstrate prejudice by showing "a reasonable probability that. but for counsel's
unprofessional errors. the result of the proceeding would have been di flerent. A reasonable
probability is a probability suflicient to undermine conlidence in the outcome'" Strickland.

466

U.S. at 694.
A defendant seeking relief under ~ 2255 bears the burden of proof by a prcponderance of
the evidence. and Dowell has not met his burden. See flail \'. UI/ited States. 30 F. Supp. 2d 883.
889 (E.D. Va. 1998) (citing V(lIIater. 377 [',2d at 9(0). Dowcllll,ils to show how Chamble's
error rises to the le\'e1 of unconstitutional incompctcncc. Evcn if Chamblc' s advice on the appeal
waiver was deficient. the Court must consider counsel's perl()[Jnance throughout the entire
proceedings to determine whether counsel provided competent assistance. Killllllellllol/ \'.
,\1orrisol/. 477 U.S. 365. 386 (1986) (citingStricklal/(l.

466 U,S, at (90). and the Court notcs that

Chamble secured a sentence below the guidelines range commensuratc with Dowell's Courtdetermined offense level. and Dowell himself stated under oath that he was satislied with
Chamble's perl(mnance during his Rule II colloquy. See lOCI'No. 67-2 at 20.
Regardless. the Court need not scrutinize Chamble's conduct because Dowell nlils to
show how. but I()r Chamble's mistake. there is a reasonable probability that thc rcsult would
have been diffcrcnt. See.!ones

\'. Clarke. 783 F.3d 987. 992 (4th Cir. 2(15) (citingS'ricklal/(l.

466 U.S, at 697) ('" i If it is casicr to disposc of an incftectiveness claim on thc ground of lack of
sufficient prejudice, .. that coursc should bc j()llowcd")). Dowcll docs not allegc that hc would
have rcjected the plea agrccmcnt had he known that hc could not appcal thc Court's crimc of
violence determination. In ordcr to show prcjudicc Ii'om counsel's misconduct in light of a guilty
plea. Dowell must show that thcrc was a reasonablc probability that. but I()r counsel's errors. he

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would not have pleaded guilty and that going to trial would be objectively reasonable. SI'I' Unill'd
Slatl'S \'. Sanliago. 632 F. App'x 769. 773 (4th Cir. 2015) (citing I'rl'lIIo \'. Moor('. 562 U.S. 115
(2011 »:

,\1'1'

also id. at 774 (citing Chrislianl', Ba//ard. 792 F.3d 427. 453 (4th Cir. 2015)) (when

the Government's case is strong. a defendant faces a nearly insurmountable obstacle to sho\\'ing
that it would have been rational to go to trial). Nor can Dowell credibly argue that he would have
been able to secure a more favorable plea agreement if Chamble had revised the terms of the
waiver to protect his appeal. SI'I' Unill'l! Siall's \'. Fugit. 703 F.3d 248. 260 (4th Cir. 2(12)
(pleading guilty entails acceptance of "both the benefits and burdens of a bargain"):

.\1'1'

also

ECF No. 67 at 10 (noting that Dowell agreed to waive his right to appeal in exchange It))"
sentence reductions

li'OI11

the Government)5 Therefore. Dowell's claim of ineffective assistance

of counsel fails.
B. Court's Error in Sentencing
Dowell reasserts his position that the Court's crime of violence determination was in
error. However. the Fourth Circuit declined to hear his appeal. and the Court will not IT-litigate
the question through a

* 2255 petition now. Dowell may not substitute a * 2255 petition It)r a

properly tiled appeal. SI'I' Carillo-Morall's \'.

u.s.. 952

F. Supp. 2d 797. 802 (E.D. Va. 2(13)

(citing Unill'dStall's \'. Frady. 456 U.S. 152. 165-67 (1982)). Furthermore. the Court's purported
error was not a jurisdictional or Constitutional error protected under

* 2255 and.

fiJI' the reasons

discussed above. docs not constitute a "fundamental defect which inherently results in a
complete miscarriage of justice." SI'I' Michl'l \'.

u.s.. 849 F. Supp.

2d 649. 653-54 (W.D. Va.

2012) (citing Unitl'd Shill's \'. Addoni=io. 442 U.S. 178. 185 (1979»).

~ Additionally. even ifChamble incorrectly advised Dmvcll that he could appeallhc COllrt"S ruling 011 the crime of
violence question. the Court. in effect. clarified that he could not appeal thai issue to the extent the COlll1 explained
that he could not appeal a sentence unless it was ahon' the guidelines range for offense level 17. which was the
offense level applicable if the Court determined that the prior conviction was a crime ofviolencc.

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C. Knowing and Voluntary

Waiver

Lastly, Dowell eontends that his appeal waiver was not knowing and voluntary because
he assumed that he eould appeal the Court's erime of viole nee determination.

ECF No. I

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(eiting Ullill'd Slall'.I' \". ,Ilarill, 96] F.2d 493, 496 (4th Cir. 1992) (an appeal waiver "is not
knowingly or voluntarily
eoneerning

made if the district eourt I(lils to speeilieally

the waiver provision of the plea agreement

during the Rule] I colloquy and the

record indieates that the defendant did not otherwise understand
wai"er")).

the full signifieanee

The Fourth Circuit direetly addressed this issue, eoneluding

and voluntarily

question the delCndant

of the

that "Dowell knowingly

waived his right to appeal his sentenee and that the sentencing challenge he seeks

to raise on appeal I(lils squarely within the eompass of the valid and enll1rceable appeal waiver:'
See f)m,.e1I, No. 16-4703. Moreovcr. the plain language of the plea agreement-that
only appeal "any term of imprisonment

Do"e1lmay

above the advisory guidelines range resulting Ii'om an

adjusted base oflense level of 1T-clearly

barred his appeal. ECF No. 67-1 at 6. Alier the Court

reviewed the terms of the waiver with Dowell during the Rule 11 eolloquy, Dowell responded
that he understood.

Therefore.

D. Certificate

Dowell"s appeal waiver was knowing and voluntary."

of Appealahility

"A Certificate of Appealability
showing of the denial of a eonstitutional
by demonstrating

may issue ... only if the applicant has made a substantial
right:- 28 U.S.C ~ 2253(c)(2).

This standard is satisfied

that reasonable jurists would lind the eourt's assessment

of the constitutional

(, Dowell notes that aftcr the Court found his prior 2008 cOllviction to he a crime of violence during his October 13.
2016 Sentencing Hearing. the Court suggested that Dowellmuy appeal the decision. See ECF No.6 7-3 at 15 r"As
Ithe Court] indicated. I mayor may not put something in \\filing for Mr. Chamblc and/or Mr. Patelro specifically
attack in Richmond. I'm slire the,Y can do it just based on m)' oral ruling:'). In making this statement. the COlll1
simply did not recognize [)owell"s prc-existing appeal waiver ns it did \\hcn accepling the pIca agn:cmel1t during
Dowelrs August S. 2016 Rearraignl11cnt Hearing. Inslead" the Court noted generally that ""!bjet{)re tiling any appeal.
you and your lawyer should consider whether you waived any or all of your appellate rights \vhen you enlered inlo
your pleiJ agreement."" St!t! I.::CF No. 67-3 at 28. As such. the Coun"s reference to a potential (lppeal of its crime of
violence determination at sewt!J1cing in no way ncgates Dmvell"s prior knowing and voluntary waiver in his earlier
pIca colloquy.

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claims presented dehatahle or wrong and that any dispositive procedural ruling hy the district
court is likewise debatable. See. e.g. Miller-Ell". Cockrell. 537 U.S. 322. 336 (2003): Rose \'.

Lee. 252 F.3d 676. 683 (4th Cir. 2001). This legal standard li.lrissuance has not heen met. and.
accordingly. no certificate of appealability shall issue in this case. Denial ofa certificate of
appealability. however. does not prevent a petitioner from seeking pre-tiling authorization for a
successive motion under 28 U.S.c.
III.

* 2255.

CONCLUSION
For the foregoing reasons. Doweirs Motion. ECF No. 64. shall be denied. A separate

Order li.lllows.

Dated: February

1..--

.2018
GEORGE J. HAZEL

United States District Judge

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