United States v. Eduardo Bowman , 561 F. App'x 294 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6827
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDUARDO BOWMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-00218-DCN-1; 2:12-cv-02249-DCN)
Submitted: August 7, 2013 Decided: March 26, 2014
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Eduardo Bowman, Appellant Pro Se. Matthew J. Modica, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eduardo Bowman seeks to appeal the district court’s order
granting the government’s summary judgment motion and denying
relief on his 28 U.S.C.A. § 2255 motion. We deny a certificate
of appealability and dismiss the appeal.
I.
Adhering to the terms of a negotiated agreement with the
government, Bowman pleaded guilty in the District of South
Carolina to conspiracy to distribute and possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846. In October
2005, the district court, in conformance with the Sentencing
Guidelines, sentenced Bowman as a career offender to 240 months
of imprisonment. Bowman did not appeal his conviction or
sentence.
In February 2012, Bowman, being incarcerated within the
jurisdiction of the Eastern District of North Carolina, filed a
petition there pursuant to 28 U.S.C. § 2241, challenging his
career offender designation in light of Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010), and United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc). The district court, with
Bowman’s consent, construed the petition as a § 2255 motion, but
then transferred it to the District of South Carolina. Bowman
had sought appointment of counsel from the transferor court
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under a standing order governing requests for post-conviction
relief based on Simmons; the transfer order concomitantly denied
his request.
The government moved in the transferee court to dismiss
Bowman’s § 2255 motion, or, in the alternative, for summary
judgment. The court determined that Bowman’s motion was filed
outside of the applicable one-year statute of limitations, see
28 U.S.C. § 2255(f), and that Bowman had not made any argument
to justify equitable tolling of the limitations period. The
court reasoned that, in any event, even if the § 2255 motion had
been timely, Bowman’s arguments were barred by the appeal waiver
in his plea agreement. Accordingly, the court granted the
government’s summary judgment motion and denied relief on
Bowman’s § 2255 motion. Bowman noted a timely appeal.
II.
Bowman may not appeal the district court’s denial of relief
on his § 2255 motion unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). When a prisoner is denied relief on the
merits, the standard for appealability is satisfied if
reasonable jurists would find the district court’s assessment of
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the constitutional claims to be debatable or wrong. See Miller-
El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,
529 U.S. 473, 484 (2000). If the district court denies relief
on procedural grounds, the prisoner must demonstrate that the
dispositive procedural ruling is debatable, and also that the
motion states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
A.
In this proceeding, we confine our review to the issues
briefed. See 4th Cir. R. 34(b). Bowman’s informal brief does
not challenge the district court’s adverse determination on
equitable tolling or contend that the doctrine should otherwise
apply. Bowman also fails to address the court’s alternative
determination regarding the appeal waiver. By electing to not
brief these issues, Bowman has waived their review. Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009); Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th
Cir. (2004) *
*
The government, however, has not filed a brief invoking
the appeal waiver. Accordingly, the government has forgone
reliance thereon. See United States v. Metzger, 3 F.3d 756,
757–58 (4th Cir. 1993).
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B.
Bowman maintains that the transferor court erred by
construing his § 2241 petition as a § 2255 motion, sending it to
the District of South Carolina, and denying his request for
appointment of counsel. We disagree.
A federal prisoner seeking to challenge the legality of his
conviction or sentence must proceed pursuant to § 2255, as
petitions under § 2241 generally are reserved for challenges to
the execution of the prisoner’s sentence. See In re Vial,
115 F.3d 1192, 1194 n.5 (4th Cir. 1997). However, in limited
circumstances, § 2255 may be inadequate or ineffective to test
the legality of the prisoner’s detention. In those cases, the
prisoner “may file a petition for a writ of habeas corpus in the
district of confinement pursuant to § 2241.” In re Jones,
226 F.3d 328, 333 (4th Cir. 2000). Because § 2255 is neither
inadequate nor ineffective to test the legality of Bowman’s
detention, he was constrained to bring his challenge in a § 2255
motion. See United States v. Poole, 531 F.3d 263, 267 & n.7
(4th Cir. 2008); Jones, 226 F.3d at 333-34.
Moreover, after providing the required notice of its intent
to construe the § 2241 petition as a § 2255 motion, then
obtaining Bowman’s consent thereto, see Castro v. United States,
540 U.S. 375, 383 (2005), the transferor court properly gave way
to the transferee court. See 28 U.S.C. § 1631 (2006) (mandating
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transfer of a civil action to the appropriate federal
jurisdiction if the transfer “is in the interest of justice”);
28 U.S.C.A. § 2255(a) (directing that a prisoner “in custody
under sentence of a court established by Act of Congress
claiming the right to be released” move the court that “imposed
the sentence” to vacate, set aside, or correct it).
Additionally, the transferor court did not abuse its
discretion in denying Bowman’s request for appointment of
counsel under the standing order. See Miller v. Simmons, 814
F.2d 962, 966 (4th Cir. 1987). The standing order was not
applicable to Bowman because he was sentenced in the District of
South Carolina, not the Eastern District of North Carolina.
C.
With respect to the transferee court’s consideration of the
§ 2255 motion, Bowman first challenges the determination that
the motion was filed after the expiration of the applicable
limitations period. The statute provides, in pertinent part:
A 1-year period of limitation shall apply to a
motion under this section. The limitation period
shall run from the latest of—
(1) the date on which the judgment of
conviction becomes final; . . . .
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if
that right has been newly recognized by the
Supreme Court and made retroactively applicable
to cases on collateral review; or
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(4) the date on which the facts supporting
the claim or claims presented could have been
discovered through the exercise of due diligence.
28 U.S.C.A. § 2255(f)(1), (3)-(4). Bowman does not suggest that
his § 2255 motion is timely under §§ 2255(f)(1), as it was filed
more than one year after his judgment of conviction became
final, and is not — as the district court found — subject to
equitable tolling.
In addition, Bowman is not entitled to the later triggering
date under § 2255(f)(3). The Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), upon which
Bowman bases his motion, is not retroactively applicable to
cases on collateral review, and, therefore, a § 2255 movant
cannot use it to establish the onset of the § 2255(f)(3)
limitations period. See United States v. Powell, 691 F.3d 554,
560 (4th Cir. 2012). By contrast, our decision in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), upon which
Bowman also relies, is retroactively applicable to cases on
collateral review. See Miller v. United States, 735 F.3d 141,
145-47 (4th Cir. 2013). Nonetheless, because Simmons is not a
Supreme Court decision recognizing a new right, it likewise
cannot be invoked in connection with the limitations period
onset contemplated by § 2255(f)(3).
Furthermore, the decisions in Carachuri-Rosendo and in
Simmons merely clarified the law and were not part of Bowman’s
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litigation history. Hence, they have no bearing on the
calculation of any limitations period potentially made
applicable to him by § 2255(f)(4). See Lo v. Endicott, 506 F.3d
572, 575–76 (7th Cir. 2007); E.J.R.E. v. United States, 453 F.3d
1094, 1097-98 (8th Cir. 2006); Shannon v. Newland, 410 F.3d
1083, 1088–89 (9th Cir. 2005).
D.
Finally, and not insignificantly, Bowman’s two predicate
Georgia convictions underlying his career offender status were
for possession of cocaine with intent to distribute, for which
he received twelve-year prison sentences. The decisions in
Carachuri-Rosendo and Simmons notwithstanding, Bowman’s Georgia
convictions provide ample foundation for his designation as a
career offender. See USSG §§ 4B1.1(a)(3), 4B1.2(b) (2013)
(authorizing imposition of career offender status in situation
where defendant has “at least two prior felony convictions of
. . . a controlled substance offense,” such offense defined,
inter alia, as one “under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits . . .
the possession of a controlled substance . . . with intent to
. . . distribute”).
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III.
In view of the foregoing, we conclude that Bowman has not
made a substantial showing of the denial of a constitutional
right. Consequently, we deny his request for a certificate of
appealability, deny his motion to appoint counsel, and dismiss
the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court, and argument would not aid the decisional
process.
DISMISSED
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