UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7804
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNIE BOWMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-01-349; CA-05-677-3-22)
Argued: January 29, 2008 Decided: February 29, 2008
Before WILLIAMS, Chief Judge, NIEMEYER, Circuit Judge, and Liam
O’GRADY, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: John C. Massaro, ARNOLD & PORTER, L.L.P., Washington, D.C.,
for Appellant. Mark C. Moore, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Rhonda L. Stewart, ARNOLD & PORTER, L.L.P.,
Washington, D.C., for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We granted Ronnie Bowman a certificate of appealability
(“COA”) to consider: (1) whether there was an insufficient factual
basis to support Bowman’s guilty plea to distribution of a
controlled substance resulting in the death of another person, such
that the district court committed error in accepting Bowman’s
guilty plea to the charge; and (2) whether the district court erred
in its instruction regarding the elements of conspiracy to
distribute one kilogram or more of heroin, in violation of 21
U.S.C.A. § 846 (West 1999 & Supp. 2007). Concluding that both
issues were procedurally defaulted and that Bowman cannot show
cause and actual prejudice excusing said default, we affirm the
district court’s denial of Bowman’s motion made under 28 U.S.C.A.
§ 2255 (West 2006).
I.
The facts and procedural history are thoroughly laid out in
our opinion on Bowman’s direct appeal, United States v. Bowman, 348
F.3d 408 (4th Cir. 2003) (“Bowman I”), and we repeat them here only
as necessary to decide Bowman’s current § 2255 motion. A federal
grand jury sitting in the District of South Carolina indicted
Bowman, along with his girlfriend, Jerrilyn Gray, on March 20,
2001, charging Bowman and Gray in an eight-count indictment
relating to drug distribution. Relevant here, Count One charged
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Bowman with conspiracy to distribute one kilogram or more of
heroin, in violation of 21 U.S.C.A. § 846 and 18 U.S.C.A. § 2 (West
2000 & Supp. 2006), and Count Four charged Bowman with distribution
of heroin that resulted in the death of another person–-Bowman’s
friend and frequent customer, Mark Nunn–-in violation of 21
U.S.C.A. § 841(b)(1)(C) and 18 U.S.C.A. § 2. In a superseding
indictment filed September 21, 2005, Count Four was amended by
replacing the word “heroin” with the phrase “Schedule I and
Schedule II controlled substance(s).” (J.A. at 24.)
Bowman’s trial began on October 22, 2001. We succinctly
summarized the subsequent events in Bowman I:
After the first day of trial, during which five witnesses
testified on behalf of the government, Bowman tendered a
guilty plea to Count 1 (conspiracy to distribute one
kilogram or more of heroin in violation of 21 U.S.C. §
846) and Count 4 (distribution of a controlled substance
that caused the death of another person in violation of
21 U.S.C. § 841(b)(1)(C)) pursuant to the terms of a
written plea agreement dated October 23, 2001. Under the
agreement, the government agreed to dismiss the remaining
three counts and to file a motion for a downward
departure to give Bowman a sentence of 22 years’
imprisonment, provided Bowman thereafter cooperate with
the government in several specified respects and tell the
truth. The parties’ agreement to a 22-year sentence was
subject to court approval and foreclosed the potential
life sentences that Bowman could otherwise have received
for the two counts. The agreement provided that if
Bowman failed to cooperate or failed to tell the truth,
he would be denied the benefit of the 22-year downward
departure, but he could not withdraw his guilty plea. In
addition, the government reserved the right to argue for
a maximum sentence.
During a lengthy plea colloquy conducted on October 23,
2001, in accordance with Federal Rule of Criminal
Procedure 11, the district court determined that Bowman’s
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plea was knowing and voluntary. During critical portions
of the colloquy, the court asked Bowman to state his
understanding of that portion of the proceeding in his
own words. Bowman thus testified under oath about his
understanding of the nature of the entire proceeding, the
nature of the charges, and the facts on which the charges
were based. The court also made repeated inquiries of
Bowman with respect to the nature of his relationship
with his attorney. Bowman stated that he was satisfied
with his attorney’s representation and that his attorney
“has been working hand in hand with me” and did
everything that Bowman asked him to do. At the
conclusion of the Rule 11 colloquy, the district court
stated:
It is the finding of the court in the case of
the U.S. versus Ronnie Bowman, also known as
“Young,” that the defendant knows his right to
a trial, knows the maximum possible
punishment, is fully competent and capable of
entering an informed plea, and that his plea
of guilty is a knowing and voluntary plea
supported by an independent basis in fact
containing each of the essential elements of
these offenses. His plea is, therefore,
accepted and he is now adjudged guilty of
those offenses.
Three weeks later, Bowman filed a pro se motion to
discharge his trial counsel, which the court granted.
With the assistance of new counsel, Bowman then filed a
motion on January 24, 2002, to withdraw his guilty plea.
The district court held hearings on this motion on May 2
and August 12, 2002. Bowman based his motion principally
on a toxicology report developed as part of the autopsy
of Mark Nunn, the victim referred to in Count 4. Because
the report indicated a finding of no heroin or fentanyl
in Nunn’s system, Bowman asserted that it showed that he
was not responsible for Nunn’s death, as charged in Count
4. Bowman also stated to the court that he was actually
innocent of the conduct charged in both Count 4 and Count
1. Finally, Bowman claimed that he did not have the
close assistance of competent counsel in that counsel
failed to review the toxicology report with him closely
and that counsel advised Bowman to enter a plea as to
both counts, regardless of Bowman’s guilt. To support
his motion to withdraw his guilty plea, Bowman
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conclusorily stated to the district court that he had
lied outright during his guilty-plea colloquy.
Bowman I, 348 F.3d at 411-12.
The district court declined to permit Bowman to withdraw his
guilty plea, a ruling we affirmed on appeal. Bowman I, 348 F.3d at
416-17. Of particular significance, in Bowman’s first appeal we
summarized his claim as follows:
Bowman’s principal argument rests on his claim that the
toxicology report prepared as part of Nunn's autopsy
indicated that Nunn had no heroin or fentanyl in his
system and therefore that Bowman could not have caused
Nunn's death by giving him heroin laced with fentanyl.
Id. at 414.
We further noted that the Government “stated that it was
prepared to prove, through the testimony of an expert witness, that
a negative toxicology report was not unusual and that the evidence
in fact showed that Nunn's death was drug induced.” Id. at 415.
We also gave great weight to the fact that Bowman, under oath,
offered this proffer for his guilty plea to Count Four:
On around about August 15, 1999 a friend of mine named
Mark Nunn came to my house to purchase some heroin. He
was ill and sick and I gave him a bag. He went into my
bathroom and used it in my bathroom and came out, and the
results of using it, the dope, he OD'd.
Id.
On March 3, 2005, Bowman timely filed a § 2255 motion, raising
six grounds for relief, including the two grounds on which we
granted a COA. Bowman attached to his motion an affidavit from Dr.
Daniel Spitz, Chief Medical Examiner of Macomb County, Michigan.
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Based upon a reading of the autopsy and toxicology reports, Dr.
Spitz “found no evidence” that drugs caused or contributed to Mark
Nunn’s death and, instead, opined that Nunn died from cardiac
arrhythmia. (J.A. at 96-97.) On September 15, 2005, acting upon
the Government’s motion, the district court granted summary
judgment against Bowman. We initially granted Bowman a COA to
pursue his claim relating to Count Four, but later expanded the COA
to include the claim relating to Count One. We will address each
in turn.
II.
We review de novo the district court’s legal conclusions
regarding Bowman’s § 2255 motion, United States v. Brown, 155 F.3d
431, 434 (4th Cir. 1998), and its factual findings for clear error.
United States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004). We are
permitted to affirm the district court’s grant of summary judgment
in favor of the Government “on any legal and factual basis fairly
presented in the district court.” United States v. Hopkins, 268
F.3d 222, 224 (4th Cir. 2001) (internal quotation marks omitted).
A. Count Four
Bowman first contends that there was an insufficient factual
basis to support his guilty plea to Count Four of the indictment,
such that the district court committed error in accepting the plea.
In support of this argument, Bowman points us to the original
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toxicology report, Dr. Spitz’s expert report, and the fact that
Mark Nunn’s life insurance company paid out a claim even though it
included an exclusion for drug overdoses. Bowman, however, has an
extremely high hurdle to overcome on this claim: procedural
default. Because Bowman could have raised the absence of a factual
basis supporting his plea on direct appeal, see United States v.
Mastrapa, 509 F.3d 652 (4th Cir. 2007) (vacating entry of guilty
plea on direct appeal where defendant “did not admit the necessary
mens rea before entering his plea and the record contained no
factual basis to support that element of the offense”), he has
procedurally defaulted this claim. Accordingly, “[i]n order to
collaterally attack a conviction or sentence based upon errors that
could have been but were not pursued on direct appeal, [Bowman]
must show cause and actual prejudice resulting from the errors of
which he complains or he must demonstrate that a miscarriage of
justice would result from the refusal of the court to entertain the
collateral attack.” United States v. Mikalajunas, 186 F.3d 490,
492-93 (4th Cir. 1999). “The existence of cause for a procedural
default must turn on something external to the defense, such as the
novelty of the claim or a denial of effective assistance of
counsel.” Id. at 493. A showing of cause and actual prejudice may
be excused if the movant can show actual innocence of the crime.
Sawyer v. Whitley, 505 U.S. 333, 339 (1992). “Typically, to
establish factual innocence a petitioner must demonstrate actual
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factual innocence of the offense of conviction, i.e., that
petitioner did not commit the crime of which he was convicted.”
Mikalajunas, 186 F.3d at 494. A movant must meet this burden with
“clear and convincing evidence.” Id.
Bowman claims that, because his appellate counsel was
ineffective, he can show cause for his procedural default. “To
establish cause for [his] default based upon ineffective assistance
of counsel, [Bowman] must show that [his] attorney[‘s] performance
fell below an objective standard of reasonableness and that [he]
suffered prejudice as a result.” Id. at 493. “Counsel’s failure
to pursue a basis for appeal by reason of a mere miscalculation of
the likelihood of success does not constitute constitutionally
ineffective representation.” Id. Applying this standard, Bowman
cannot show his appellate counsel was ineffective in failing to
raise this claim on direct appeal. In our earlier opinion we noted
that Bowman, under oath, admitted his guilt to Count Four and
failed to “proffer[] any reason why the government’s proposed
testimony explaining the [absence of heroin or fentanyl in the
toxicology] report would be false or irrational.” Bowman I, 348
F.3d at 414. Given this conclusion, it is difficult to see how
Bowman’s appellate counsel was ineffective; his failure to bring
this claim was not even a miscalculation given our conclusion
regarding the factual basis supporting Bowman’s plea on Count Four.
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Nor can Bowman show his actual innocence by clear and
convincing evidence. Indeed, Bowman has fallen far short of this
demanding burden. None of Bowman’s “new” evidence explains how the
Government’s alternate theory, which was to be proffered by an
expert who actually viewed Nunn’s body, was “false or irrational.”
Id. at 414. As the district court properly noted, Dr. Spitz’s
affidavit “adds little to the findings” in this case, given that
the original toxicology report showed an absence of drugs in Nunn’s
system.
Thus, because Bowman has procedurally defaulted his claim that
there was no factual basis for his guilty plea to Count Four, and
because Bowman cannot show either that cause and actual prejudice
excuses this default or that he is actually innocent, the district
court was correct to grant summary judgment in favor of the
Government.
B. Count One
Bowman next contends that, during his initial Rule 11
colloquy, the district court committed error by failing to inform
him that drug quantity is an element of the offense and that,
absent such error, he would not have pleaded guilty to Count One.
Bowman did not raise this claim on direct review, so it, too, is
procedurally defaulted. United States v. Sanders, 247 F.3d 139,
144-46 (4th Cir. 2001). Thus, Bowman must again meet the cause and
actual prejudice standard. Moreover, in deciding if any error
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actually prejudiced Bowman, we note that violations of Rule 11 are
subject to harmless error, such that we may grant Bowman relief on
this claim only if the Rule 11 violation “affected the defendant’s
substantial rights.” United States v. Defusco, 949 F.2d 114, 117
(4th Cir. 1991).
Without delving into whether Bowman can show cause for his
procedural default, we simply conclude that, because any error
during Bowman’s Rule 11 colloquy could not have affected Bowman’s
substantial rights, Bowman cannot show actual prejudice excusing
his procedural default. Bowman admitted during the colloquy to his
involvement in distributing more than a kilogram of heroin, and we
noted in our earlier opinion that the Government had put forth one
witness who “testified to buying 3000-4000 ‘bags’ of heroin from
Bowman through daily transactions over a period of years.” Bowman
I, 348 F.3d at 415. Indeed, “other witnesses testified in
laborious detail about hundreds of transactions over a period of
four years, involving the sale of thousands of bags of heroin.”
Id. Because any error would not affect Bowman’s substantial
rights, he cannot show actual prejudice and the district court
correctly granted summary judgment in favor of the Government on
this claim.
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III.
In sum, Bowman’s § 2255 motion in many ways simply recasts
arguments we considered in Bowman I. Accordingly, and for the
aforementioned reasons, the district court’s grant of summary
judgment in favor of the Government is hereby
AFFIRMED.
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