                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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


                                       2
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


                           4
      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.

                                   5
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


                                       6
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


                                      7
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.




                                       8
     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


                                         9
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.




                                        10
                              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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