                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


    UNITED STATES OF AMERICA,

      Plaintiff,

          v.                                             Criminal No. 11-00129-2 (CKK)
    WILLIAM MARTIN BOWMAN,

      Defendant.


                                 MEMORANDUM OPINION
                                    (October 16, 2019)

         Presently before the Court is Pro Se Defendant William Bowman’s [1011] Motion for

Leave to File Notice of Appeal and/or Motion for Reconsideration; the United States’ [1028]

Opposition to the Defendant’s Motion; and the Defendant’s [1037] Pro Se Reply to the Opposition.

Defendant William Bowman (“Defendant” or “Mr. Bowman”) requests that this Court reconsider

its December 3, 2018 Order denying his Motion to Vacate, Set Aside or Correct Sentence pursuant

to 28 U.S.C. § 2255, wherein Defendant requested that this Court vacate or reduce his sentence

based upon his claims of ineffective assistance of counsel and his challenges to the

constitutionality of his sentence regarding the firearms charge and the drug conspiracy charge.1

Upon a searching review of the parties’ submissions, the relevant authorities, and the record as a

whole, the Court finds that Mr. Bowman is not entitled to the requested relief. Accordingly, the




1
 In that [1003] December 3, 2018 Order, the Court ordered that “no certificate of appealability
shall issue from this Court” and if Defendant intended to file an appeal, “he must seek a
Certificate of Appealability from the United States Court of Appeals for the District of Columbia
Circuit[.]”
                                                 1
Court shall DENY Mr. Bowman’s [1011] Motion for Leave to File Notice of Appeal and/or Motion

for Reconsideration.

                                      I. BACKGROUND2

       A. Arrest and Conviction

       In a superseding indictment filed on September 17, 2012, Mr. Bowman was charged with

one count of conspiracy to distribute and possess with intent to distribute five kilograms or more

of cocaine, three counts of using, carrying and possessing a firearm during a drug trafficking

offense, three counts of distribution of cocaine, and two counts of unlawful distribution of

cocaine base occurring on July 1 and 7, 2000. Redacted Superseding Indictment, ECF No. 440.

Upon motion by the Government, the two counts of unlawful distribution of cocaine base

occurring on July 1 and 7, 2000 were dismissed by the Court on October 11, 2012. Two of the

counts of using, carrying and possessing a firearm during a drug trafficking offense were

consolidated into one count before the case went to the jury.

       On November 20, 2012, following a month long jury trial, the jury found Mr. Bowman

guilty on the following charges: 1) conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine (21 U.S.C. §§ 846, 841 (a)(1) and (b)(1)(A)(ii)) (Count One),

three counts of distribution of cocaine (21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C)) (Counts Three-

Five), and one count of using, carrying, and possessing a firearm (18 U.S.C. § 924(c)(1)) (Count

Two). Verdict Form, ECF No. 653.3 During most of his pretrial and trial proceedings, Mr.

Bowman was represented by a court-appointed attorney, Mr. Dwight Crawley. CJA 20



2
  This Background section borrows heavily from the Background section in this Court’s
December 3, 2018 [1004] Memorandum Opinion.
3
  Mr. Bowman was acquitted by the jury of the second count of using, carrying, and possessing a
firearm during a drug trafficking offense.
                                               2
Appointment, ECF No. 24.

       B. Sentencing and Appeal

       The court held a sentencing hearing on April 9, 2013, and Mr. Bowman was sentenced to

two hundred forty (240) months of imprisonment on Counts 1, 3, 4 and 5, to run concurrently, and

a term of three hundred (300) months of imprisonment on Count 2, to run consecutively to Counts

1, 3, 4 and 5, together with a supervised release period of one hundred and twenty (120) months

on Count 1, sixty (60) months on Count 2, and seventy-two (72) months on Counts 3, 4, and 5,

with supervised release running concurrently. Judgment in a Criminal Case, ECF No. 761. Mr.

Bowman and co-defendant Mr. Williams directly appealed the judgment, but the United States

Court of Appeals for the District of Columbia Circuit rejected Mr. Bowman’s claims and affirmed

his conviction on July 8, 2016. United States v. Henry Brandon Williams, 827 F.3d 1134 (D.C.

Cir. 2016), cert den., 137 S. Ct. 706 (2017)

       C. Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255

       Mr. Bowman filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28

U.S.C. Section 2255, which was premised on allegations of ineffective assistance of counsel

related to his trial counsel, Dwight Crawley, and his appellate counsel, Julian S. Greenspun. More

specifically, Mr. Bowman claimed that his trial counsel failed to “address[ ] the fact that [he] was

willing to accept a plea without inducing any other co-defendants to plea[d]” and to inform the

Government that Mr. Bowman “still wanted to accept a plea” before trial and further, that counsel

did not properly advise him of the consecutive nature of sentencing on the firearms counts. Def.’s

Mot. To Vacate, Set Aside or Correct Sentence, ECF No. 961, at 4-5. Mr. Bowman asserted

generally that his appellate counsel failed to raise these same issues on appeal. Additionally, Mr.

Bowman claimed that his trial counsel visited him rarely and he challenged the alleged

                                                 3
unconstitutionality of the punishment imposed for his firearms and drug conspiracy convictions.

On December 3, 2018, this Court issued its [1004] Memorandum Opinion finding that Mr.

Bowman had “not proven that his [trial ]counsel behaved in a professionally unreasonable manner

which unjustly prejudiced him, and neither prong of the standard in [the] Strickland [case] had

been met.” December 3, 2018 Mem. Op., ECF No.1004, at 12. Furthermore, Mr. Bowman had

“not established deficient performance or prejudice with respect to his appellate counsel” and his

“claims that his sentences on the firearms and drug conspiracy charges [were] unconstitutional

[were] procedurally barred because these claims were not raised on direct appeal nor [did] he show

cause or prejudice.” Id. at 15. Accordingly, the Court denied Mr. Bowman’s [961] Motion to

Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. December 3, 2018 Order,

ECF No. 1003.

       D. Motion to File Notice of Appeal and/or for Reconsideration

       In his [1011] Motion to File Notice of Appeal and/or for Reconsideration (“Def’s Mot.”),

Defendant argues generally that the Court’s decision is “contrary to establish[ed] law concerning

6th Amendment Rights,” because he satisfied “both parts of the two-pronged test set forth in

Strickland v. Washington.” Def.’s Mot., ECF No. 1011, at 1-2. Defendant provides no information

relevant to his claim that counsel was ineffective other than the same statements that were

previously proffered to this Court. Defendant does assert however that the First Step Act of 2018

“gives discretion to the district court to reevaluate petitioner’s judgment and conviction,” with

respect to his conviction pursuant to 18 U.S.C. § 924(c).     Id. at 2. The United States filed its

[1028] Opposition to the Defendant’s Motion, and Defendant filed his [1037] Reply, wherein he

raised for the first time a claim relating to the holding in United States v. Davis, 139 S. Ct. 2319

(2019) (finding unconstitutionally vague the residual clause of 18 U.S.C. § 924(c)(3)(B)).

                                                 4
Defendant’s Motion is ripe for resolution by this Court.

                                     II. LEGAL STANDARD

       “A[n] appeal may not be taken to the court of appeals from . . . the final order in a

proceeding under section 2255” unless “a circuit justice or judge issues a certificate of

appealability.” 28 U.S.C. § 2253(c)(1)(B). In the event that a claim is denied on the merits, a

certificate of appealability (“COA”) may be granted “only if the [defendant] has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2); see also United States v.

Vargas, 393 F.3d 172, 175 (D.C. Cir. 2004), cert. den., 546 U.S. 1011 (2005). A “substantial

showing” requires that the defendant “demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (a petitioner must show that

constitutional “issues are debatable among jurists of reason . . . “).

       This case involves constitutional claims that the Defendant’s Sixth Amendment right to

counsel was denied. Claims based on ineffective assistance of counsel are analyzed in accordance

with the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires

the defendant to prove by a preponderance of the evidence that his counsel’s performance was

“deficient” insofar as he made “errors so serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment.” Id. at 687. The defendant must also

demonstrate that the “deficient performance prejudiced [his] defense.” Id.. “A fair assessment of

attorney performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. at 689. The Court must “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

                                                  5
assistance.” Id. To establish prejudice, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability “sufficient to undermine confidence in

the outcome.” Id. at 694.

                                        III. DISCUSSION

       A. Prior Determination on Ineffective Assistance of Counsel

       This Court held previously that a COA would not be issued in connection with any

ineffective assistance of counsel claims raised by Mr. Bowman raised in his § 2255 motion,

applying the rationale that reasonable jurists would not find debatable this Court’s rejection of Mr.

Bowman’s ineffectiveness claims, where such rejection was based on the record in this case. See

December 3, 2018 Mem. Op., ECF No. 1004 (accompanying the Order denying Defendant’s

Section 2255 motion). The record indicates that the Government made three plea offers to Mr.

Bowman — two of which were contingent upon one or both of the co-defendants accepting a plea

and one which was either wired to a co-defendant’s agreement to plead guilty, or which required

Mr. Bowman to cooperate and testify against his co-defendants. December 3, 2018 Mem. Op.,

ECF No. 1004, at 8-10, 12. While in court, Defendant confirmed that he rejected the first plea

offer. Id. at 8. Mr. Bowman was present when his trial counsel indicated that Defendant wanted

to accept the second offer, but it was contingent on co-defendant Williams accepting a plea, and

Williams refused to do so. Id. at 8-9. Mr. Bowman was present also during discussion of the third

plea offer, which was not necessarily wired. At that time, Mr. Bowman did not disagree with his

trial counsel’s representation that he did not wish to engage in any discussions with the

Government [i.e., cooperate], and co-defendant Williams was still unwilling to plead guilty. Mr.

Bowman’s trial counsel indicated that Mr. Bowman was interested in a plea if the wired aspect of

                                                 6
the plea was dropped or the condition that he cooperate was removed. Id. at 9-10.

       The record in the case further supports this Court’s finding that Defendant was advised that

the conviction on the Section 924(c) count would result in a consecutive mandatory minimum

sentence. Defendant was present at a status hearing where his trial counsel stated on the record

these sentencing consequences, and later when the consequences were reiterated by trial counsel

at another status hearing. Id. at 10-11.

       Even though this Court found that Defendant had not met the first prong under Strickland,

the Court examined the second prong and noted that Defendant could not have accepted any of the

wired pleas because they were contingent on actions by his co-defendants, and he chose not to

accept the plea that was not wired because it required his cooperation with the Government. Id. at

12. The Court found further that Defendant’s claims of ineffective assistance of appellate counsel

were unwarranted because they were vague and conclusory. Id.

       Defendant’s instant Motion provides no basis to support his claim that a reconsideration of

this Court’s denial of his § 2255 motion is warranted and/or that a Certificate of Appealability

should issue with regard to his Sixth Amendment claims of ineffective assistance of counsel.

       B. First Step Act

       In his Motion, Defendant refers to the First Step Act of 2018, Pub. L. No. 115-391, 132

Stat. 5194, in connection with a challenge to his conviction on the Section 924(c) charge. The

Government asserts preliminarily that this Court should treat the Defendant’s First Step Act claim

as a successive motion under 28 U.S.C. § 2255. Alternatively, the Government suggests that this

claim may be summarily denied because Defendant does not qualify under Section 403 of the First

Step Act. The Court will address that alternative argument, which effectively negates Defendant’s

claim and avoids any unnecessary pursuit by the Defendant of a successive Section 2255 claim.

                                                7
          The First Step Act, which took effect on December 21, 2018, inter alia, amended 18 U.S.C.

§ 924(c) to reduce the severity of “stacking” multiple convictions. See First Step Act, Section 403.

Previously, a defendant convicted of a § 924(c) offense triggered a mandatory 25-year sentence

for each additional § 924(c) conviction under the statute’s “second or subsequent count of

conviction” provision regardless of whether the convictions were the result of the same indictment.

Deal v. United States, 508 U.S. 129, 130-31 (1993). This rule was changed by the First Step Act

with the effect that the higher 25-year sentence only applies to repeat offenders, i.e., defendants

who violate § 924(c) after a prior conviction under the statute had become final. See First Step

Act of 2018, Section 403, 132 Stat. at 5222 (“[t]his section, and the amendments made by this

section, shall apply to any offense that was committed before the date of enactment of this Act, if

a sentence for the offense has not been imposed as of such date of enactment.) In this case,

Defendant’s prior § 924 (c) conviction, from 2001, became final long before the violation in this

case. See United States v. White, Criminal Action No. 93-97, 2019 WL 3719006 (slip op.) *18

(“Section 403, to clarify 18 U.S.C. § 924(c)’s penalty provisions, appl[ies] to “any offense that

was committed before the” First Step Act’s enactment, “if a sentence for the offense” had “not

been imposed” by that date.”) In White, the Honorable Beryl A. Howell, Chief Judge, noted that

Section 403 is “not retroactively available to those already sentenced.” Id. (citing United States v.

Wiseman, No. 18-3904, 932 F.3d 411, --- , 2019 WL 3367615, at *3 (6th Cir. July 26, 2019)).4

Accordingly, because Defendant’s prior conviction became final years before the violation in this

case, Defendant is not eligible for retroactive application of First Step Act Section 403 sentencing

relief.



4
 In its Opposition, the Government cites several district court cases from other districts for the
proposition that Section 403 is not retroactive. Govt. Opp’n, ECF No. 1028, at 11 (string cite).
                                                 8
       Mr. Bowman’s Reply raises an additional argument that was not addressed in his Motion

or raised in the Government’s Opposition. In the interest of judicial economy, this Court will

briefly address that argument. Defendant asserts that the ruling in United States v. Davis, 139 S.

Ct. 2319, 2324 (2019) (finding that the residual clause of 18 U.S.C. § 924(c)(3)(B) was

unconstitutionally vague) is applicable to his case. Defendant is incorrect insofar as his Section

924(c)(1) violation for “using, carrying and possessing a firearm during a drug trafficking offense”

was not based upon the residual clause (requiring an interpretation of the term “crime of violence”)

but was instead based upon his having committed a drug trafficking offense. See 18 U.S.C. §

924(c)(2) (specifically defining a drug trafficking offense).5 Accordingly, Defendant is not

entitled to relief pursuant to application of the Davis case.

                                            IV. CONCLUSION

       For the reasons set forth herein, the Defendant’s [1011] Motion for Leave to File Notice of

Appeal and/or Motion for Reconsideration shall be DENIED. Defendant has not made a substantial

showing that his Sixth Amendment right to counsel was denied in this case, and thus, no Certificate

of Appealability will issue. Furthermore, Defendant’s Section 403 First Step Act fails because of

the timing of the finality of his prior conviction. A separate Order accompanies this Memorandum

Opinion.

       DATED: October 16, 2019                         __________/s/_____________________
                                                       COLLEEN KOLLAR-KOTELLY
                                                       UNITED STATES DISTRICT JUDGE



5
 Mr. Bowman references Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (holding that in a
prosecution under 18 U.S.C. Section 922(g) and 18 U.S.C. Section 924(a)(2), the Government
must prove that: (1) the defendant knew he possessed a firearm and (2) the defendant knew that
he fell within one of the relevant categories of people barred from firearm possession). This case
referenced by Defendant is unconnected to the firearms charge on which Defendant was
prosecuted.
                                                  9
