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Bower v. United States

United States District Court, M.D. Pennsylvania

October 31, 2017

CHARLES BOWER, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          Kane Judge

         Before 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. 90).[1]

         I. BACKGROUND

         On June 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), [2] 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.)

         On 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. 75.)

         However, 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.)

         Petitioner 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.

         II. LEGAL STANDARD

         Under 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)).

         III. DISCUSSION

         A. Section 2255 Motion

         Petitioner 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).

         The 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.

         1. Procedural Default

         The 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.[3] 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.

         In the 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 ...


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