United States District Court, D. New Hampshire
Juvan Bowens, pro se Seth R. Aframe, Esq.
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.
Bowens is an inmate in the Federal Correctional Institution
in Berlin, New Hampshire. Having been convicted of four
federal drug offenses in the Western District of North
Carolina, he is serving a sentence of 262
months. Appearing pro se, Bowens
petitions this court for a writ of habeas corpus under the
provisions of 28 U.S.C. § 2241. Before this magistrate
judge for a report and recommendation is respondent's
motion to dismiss. Petitioner objects. For the reasons that
follow, respondent's motion to dismiss should be granted.
case began when Bowens, and 15 other defendants, were charged
with: (1) “one count of conspiracy to possess with
intent to distribute a quantity of cocaine and cocaine base,
” United States v. Bowens (Bowens I),
425 F. App'x 205, 206 (4th Cir. 2011); and (2)
“three counts of possession with intent to distribute a
quantity of cocaine base and aiding and abetting, ”
id. “After the return of the Indictment, the
Government served [Bowens] with notice of its intention to
seek enhanced penalties pursuant to 21 U.S.C. § 851,
based on a prior North Carolina drug conviction . . .
.” Bowens v. United States (Bowens
II), Nos. 5:12-CV-00123-RLV &
5:07-CR-00050-RLV-DSC-14, 2015 WL 3882342, at *1 (W.D. N.C.
June 16, 2015). That enhancement exposed Bowens to a
statutory mandatory minimum sentence of 20 years rather than
the 10-year mandatory minimum that is applicable without the
enhancement. See 21 U.S.C. § 841(b)(1)(A).
Bowens was convicted on all four of the charges against him
and thereafter was sentenced. As for the mechanics of
Following entry of the verdict, a probation officer
[“PO”] prepared a presentence report
(“PSR”) in which [following the U.S. Sentencing
Guidelines, the PO] calculated a base offense level of 36 due
to the quantity of drugs for which [Bowens] was held
responsible, and found a criminal history category of VI,
resulting in a Guidelines range of 324 to 405-months'
imprisonment. Petitioner was sentenced to 324-months in
prison on each count, to be served concurrently.
Bowens II, 2015 WL 3882342, at *1. The PSR does not
appear to be a part of the record, and neither party has
described the specific findings that led to Bowens' being
assigned a criminal history category of VI. Be that as it
may, Bowens was given a Guidelines sentence that exceeded the
enhanced statutory mandatory minimum sentence that was the
subject of the Government's § 851 notice.
appealed, raising four claims of error, including this one:
“the district court erred in overruling his objection
to the § 841 sentence enhancement because the underlying
state felony conviction was not a proper predicate for the
purposes of § 841.” Bowens I, 425 F.
App'x at 209. The Court of Appeals disagreed, see
id. at 210, and Bowens' “judgment was affirmed
in all respects, ” Bowens II, 2015 WL 3882342,
Bowens filed a motion pursuant to 28 U.S.C. § 2255. In
it, he raised several grounds for relief, including a claim
he [was] entitled to sentencing relief based on the Fourth
Circuit's en banc opinion in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) . . . [because
under Simmons, ] his prior North Carolina drug
conviction, for which he was sentenced to a suspended term of
8 to 10 months' imprisonment, [did] not qualify him for a
mandatory-minimum sentence of 20-years under 21 U.S.C. §
841(b)(1)(A), because the conviction [was] no longer
considered a “felony drug offense” under federal
law because he could not have been sentenced to more than one
year in prison.
Bowens II, 2015 WL 3882342, at *1. While Bowens
claimed that under Simmons, it was improper to use
his North Carolina conviction to trigger a §
841(b)(1)(A) sentence enhancement, he did not claim that the
holding in Simmons invalidated the criminal history
finding in the PSR. In his order denying Bowens relief under
§ 2255, Judge Voorhees recited the holding in
Simmons, but ruled that Bowens'
contention that he [was] entitled to sentencing relief based
on the en banc Simmons opinion [was] without merit
because his prior state drug conviction had no impact on his
ultimate sentence based on the fact that he was sentenced
pursuant to his Guidelines range of 324 to 405 months, and
only after the Court refused to depart below this range.
Id. at *2. Judge Voorhees went on to explain that
“in light of the denial of [Bowens'] motion for a
departure below the low-end of the Guidelines range, the
specter of the mandatory statutory minimum sentence was
harmless.” Id. Bowens appealed, and the Fourth
Circuit dismissed his appeal. See United States v.
Bowens (Bowens III), 624 F. App'x 91 (2015)
petition followed. In his cover sheet, Bowens lists two
grounds: (1) “Petitioner is serving an illegal sentence
based on an erroneous §  enhancement, ” Pet.
(doc. no. 1) 6 of 38; and (2) ineffective assistance of
counsel, see id. at 7 of 38. However, petitioner has
informed the court that he is ...