United States District Court, M.D. Pennsylvania
the Court is Petitioner Charles Bower's motion under 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence. (Doc. No. 78.) Also before the Court are:
Petitioner's motion pursuant to Rule 35 (Doc. No. 66);
motion for declaratory judgment (Doc. No. 83); motion to stay
or suspend the sentencing pending appeal and a request for an
order declaring H.R. 3190/Public Law 80-772 unconstitutional
(Doc. No. 87); and “Complaint for Injunction Against
Unconstitutional Disciplinary Hearing” (Doc. No. 90).
For the reasons that follow, the Court will deny
Petitioner's motion to vacate (Doc. No. 78). The Court
will also deny his motion for declaratory judgment (Doc. No.
83), his motion under Rule 35 (Doc. No. 66), and his motion
to stay or suspend sentencing pending appeal (Doc. No. 87).
The Court will decline to act on Petitioner's
“request” for an order declaring H.R. 3190/Public
Law 80-772 unconstitutional (Doc. No. 87), and dismiss
Petitioner's “Complaint” (Doc. No.
14, 2012, a grand jury indicted Petitioner Charles Bower on
one count of distribution of methamphetamine, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Doc. No.
1.) Petitioner entered into a plea agreement on March 12,
2014 (Doc. No. 29),  and the Court accepted Petitioner's
plea of guilty on April 17, 2014 to the lesser included
offense contained in the one count of methamphetamine
distribution. (Doc. Nos. 35, 36.) On January 22, 2015, this
Court sentenced Petitioner to a term of eighty-six months of
imprisonment. (Doc. No. 59 at 2.)
December 30, 2015, Petitioner filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. (Doc. No. 63.) The Court directed Petitioner to file a
notice of election. (Doc. No. 65.) Petitioner did not return
the Court-issued notice of election. Instead, Petitioner
filed a Rule 35 motion on February 16, 2016 (Doc. No. 66). On
May 3, 2016, the Court directed the Clerk of Court to serve a
copy of the Section 2255 motion (Doc. No. 63), upon the
United States Attorney for the Middle District of
Pennsylvania and ordered the Government to respond to
Petitioner's Section 2255 motion on or before May 19,
2016. (Doc. No. 69.) On June 8, 2016, the Government filed a
brief in opposition to Petitioner's December 30, 2015
motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. No.
on May 23, 2016, Petitioner submitted a letter stating that
Petitioner did not receive a notice of election from the
Court. (Doc. No. 74.) As a result, on June 8, 2016, this
Court again directed Petitioner to complete and file a notice
of election form. (Doc. No. 76.) On July 6, 2016, Petitioner
returned the notice of election and elected to
“withdraw [his] motion, petition, or pleading” in
favor of filing a “one, all-inclusive motion under 28
U.S.C. § 2255 within the one-year limit for filing such
a motion.” (Doc. No. 77.)
filed an all-inclusive motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 on
July 6, 2016. (Doc. No. 78.) On July 26, 2016, this Court
ordered the Clerk of Court to serve a copy of the
all-inclusive Section 2255 motion on the Government. The
Government filed a supplemental brief in opposition to the
pending Section 2255 motion on August 24, 2016. (Doc. No.
81.) On September 2, 2016, Petitioner filed an affidavit in
reply to the Government's brief in opposition. (Doc. No.
82.) Subsequently, on October 13, 2016, Petitioner filed a
motion for declaratory judgment, challenging this Court's
jurisdiction. (Doc. No. 83.) The pending Section 2255 motion,
filed on July 26, 2016, and the motion for declaratory
judgment are ripe for disposition.
28 U.S.C. § 2255(a), a federal prisoner may file a
motion requesting that the sentencing court vacate, set
aside, or correct his sentence on the basis “that the
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, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255. Section 2255 does not afford a remedy for all
errors that may have been made at trial or during sentencing.
United States v. Addonizio, 442 U.S. 178, 185
(1979). Rather, Section 2255 is implicated only when the
alleged error raises “‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” Id. at 185 (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)).
Section 2255 Motion
raises the following grounds in support of his Section 2255
motion: (1) the Government failed to fulfill its promise to
recommend a reduction in his offense level, Petitioner's
counsel was ineffective in not objecting to the
Government's failure to fulfill its promise, and this
Court violated Petitioner's “right to
receive” a three-level reduction in his offense level
for acceptance of responsibility (Doc. No. 78 at 4, 14-15);
(2) the change of plea colloquy failed to satisfy Rule 11 of
the Federal Rules of Criminal Procedure (Id. at
15-16); (3) the Government breached the plea agreement and
evidenced prosecutorial misconduct by arguing for a
“two-level” enhancement and this Court erred in
applying a two-point “enhancement for a weapon”
(Id. at 17-18); (4) Petitioner is entitled to a
sentence reduction under Amendment 782 (Id. at
18-19); (5) the sentence is invalid under “Rule
35” because the Government did not “prove they
had jurisdiction” (Id. at 20); and (6) this
Court failed to consider all of the “3553
factors” (Id. at 20-21).
Government largely declines to address the merits of
Petitioner's Section 2255 motion and argues that the
majority of Petitioner's claims are procedurally
defaulted. (Doc. No. 75 at 6) (citing United States v.
Pelullo, 399 F.3d 197, 223 (3d Cir. 2005)). As the
Government notes in its opposition to Petitioner's
Section 2255 motion, “[a]ll of these claims, with the
exception of the one addressed at counsel for allegedly
failing to object to the denial of credit for acceptance of
responsibility, needed to be raised on direct appeal or else
the defendant would be barred from raising them via a 2255
motion.” (Doc. No. 75 at 5-6.) The Court first
addresses the issue of procedural default.
issue of procedural default is presented by Petitioner's
waiver of his rights to direct appeal and collateral review,
which formed part of his plea agreement. The Government
argues that procedural default has occurred because
Petitioner cannot “raise by 2255 motion what he has
bargained away” in entering into a plea agreement that
includes a waiver of the right to appeal. (Id.) The
United States Court of Appeals for the Third Circuit provides
the applicable standard as follows:
Because collateral review under § 2255 is not a
substitute for direct review, a movant ordinarily may only
raise claims in a 2255 motion that he raised on direct
review. Put differently, a movant has procedurally defaulted
all claims that he neglected to raise on direct appeal. But
courts will exempt a movant from that rule if he can prove
either that he is actually innocent of the crime for which he
was convicted, or that there is a valid cause for the
default, as well as prejudice resulting from the default.
Hodge v. United States, 554 F.3d 372, 378-79 (3d
Cir. 2009). Pursuant to this standard, a movant is required
to demonstrate actual innocence or cause and prejudice in
order for procedural default to be excused.
instant case, Petitioner has procedurally defaulted on the
claims raised in his Section 2255 motion through his failure
to raise them on direct appeal by operation of his direct
appeal waiver. United States v. Bousley, 523 U.S.
614, 622 (1998). Pursuant to the standard articulated above,
in order for his procedural default to be excused, Petitioner
must demonstrate either actual innocence or cause and
prejudice. Here, Petitioner has failed to make such a
showing, as he fails to allege actual innocence or cause and
prejudice, nor does he present any facts that would support
such assertions. (Doc. No. 78.) Consequently, the Court is
persuaded by the Government's argument that Petitioner
has not demonstrated ...