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Bowens v. Warden, FCI Berlin

United States District Court, D. New Hampshire

January 11, 2018

Samuel Bowens
v.
Warden, FCI Berlin

          Samuel Juvan Bowens, pro se Seth R. Aframe, Esq.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.

         Samuel 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.[1] 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.

         I. Background

         This 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).[2] 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 Bowens' sentencing:

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.

         Bowens 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, at *1.

         Next, Bowens filed a motion pursuant to 28 U.S.C. § 2255. In it, he raised several grounds for relief, including a claim that

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.[3] 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) (per curiam).

         This petition followed. In his cover sheet, Bowens lists two grounds: (1) “Petitioner is serving an illegal sentence based on an erroneous § [841] 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 ...


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