MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Presently
before the Court is Defendant William Bowman's [961]
Motion to Vacate, Set Aside or Correct Sentence pursuant to
28 U.S.C. § 2255. Defendant, William Bowman (“Mr.
Bowman” or “Defendant”), who is proceeding
pro se, requests 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. Upon a searching review of the
parties' submissions, [1] the relevant authorities, and the
record as a whole, the Court finds that Mr. Bowman is not
entitled to the requested relief. Accordingly, the Court
shall DENY Mr. Bowman's Motion to Vacate, Set Aside or
Correct Sentence.
I.
BACKGROUND
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.[2] The facts underlying these charges may be
summarized as follows: Mr. Bowman was an upper level manager
of a wholesale cocaine trafficking organization operating in
the District of Columbia (the “District”)
metropolitan area from January 2009 through April 26, 2011,
when he was arrested as a result of an investigation by the
Federal Bureau of Investigation and the Metropolitan Police
Department. Mr. Bowman and his co-conspirators acquired large
quantities of cocaine in California, shipped it to the
District and distributed it to mid-level and street-level
dealers. Mr. Bowman was primarily responsible for the
logistics of paying the suppliers and arranging shipments of
cocaine from California to the District. In this role, Mr.
Bowman directed his co-conspirators to rent shipping pods in
which to ship money and cocaine between the District and
California. He also provided financing for the
drug-trafficking organization, and he was involved in cutting
and processing the cocaine received from California.
See Govt's Mem. in Aid of Sentencing, ECF No.
696, at 1-2. During most of his pretrial and trial
proceedings, Mr. Bowman was represented by a court-appointed
attorney, Mr. Dwight Crawley. CJA 20 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, arguing that: (1)
the Court erroneously denied their motions to suppress
evidence gained from wiretapping; (2) the Court erroneously
allowed the government to present lay opinion testimony from
the case investigator; (3) the Court should have granted the
Mr. Williams' motion for severance and judgment of
acquittal; and (4) the government engaged in unconstitutional
overreaching in “wiring” the plea offers extended
to Mr. Bowman and Mr. Williams.
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).
Notably, the Circuit Court found that Mr. Bowman's due
process challenge on the wired plea deals failed under
United States v. Pollard, 959 F.2d 1011 (D.C. Cir.
1992). Under Pollard, a plea offer that is wired to
co-defendants does not automatically offend due process so
long as there is no indication of government coercion or bad
faith, and in this case, “[n]othing in the record
suggests that the Government wired Bowman's plea in a
bad-faith effort to coerce him into involuntarily accepting a
plea…” United States v. Williams, 827
F.3d at 1164-65. Furthermore, because the Government had
probable cause to arrest and prosecute both Bowman and
co-defendant Williams, Bowman “had ‘no right to
be offered a plea' at all much less the particular plea
agreement of his choosing.” Id. at 1165
(citing Missouri v. Frye, 566 U.S. 134, 148 (2012)).
C.
Present Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. § 2255
Pending
before the Court is Mr. Bowman's Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence
(“Motion”). Mr. Bowman's Motion is 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
claims 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 asserts
generally that his appellate counsel failed to raise these
[same] issues on appeal. Additionally, Mr. Bowman claims that
his trial counsel visited him rarely and he challenges the
alleged unconstitutionality of the punishment imposed for his
firearms and drug conspiracy convictions.
II.
LEGAL STANDARD
Under
28 U.S.C. § 2255, federal prisoners may file a motion to
vacate, set aside or correct his sentence if he believes that
the otherwise final 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(a). The standard for granting such a
motion is high, as courts want to generally respect the
finality of judgments and note the opportunities already
afforded to prisoners to raise objections during trial or on
appeal. “[T]o obtain collateral relief a prisoner must
clear a significantly higher hurdle than would exist on
direct appeal.” United States v. Frady, 456
U.S. 152, 166 (1982). The petitioner has the burden of proof
to demonstrate his right to such relief by a preponderance of
the evidence. United States v. Basu, 881 F.Supp.2d
1, 4 (D.D.C. 2012). A court shall grant a hearing to
determine the issues and make findings of fact and
conclusions of law “[u]nless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief.” 28 U.S.C. § 2255(b).
With
few exceptions, a prisoner may not raise a claim as part of a
collateral attack if that claim could have been raised on
direct appeal, unless he can demonstrate either: (1)
“cause” for his failure to do so and
“prejudice” as a result of the alleged violation,
or (2) “actual innocence” of the crime of which
he was convicted. Bousley v. United States, 523 U.S.
614, 622 (1998). However, “[w]here a petitioner raises
claims of ineffective assistance of counsel in a § 2255
motion, he need not show ‘cause and prejudice' for
not having raised such claims on direct appeal, as these
claims may properly be raised for the first time in a §
2255 motion.” United States v. Cook, 130
F.Supp.2d 43, 45 (D.D.C. 2000) (citation omitted),
aff'd, 22 Fed.Appx. 3 (D.C. Cir. 2001).
A
defendant claiming ineffective assistance of counsel may
raise it for the first time as a collateral attack, rather
than on direct appeal, but must show (1) “that
counsel's performance fell below an objective standard of
reasonableness under prevailing professional norms, ”
and (2) “that this error caused [him] prejudice.”
United States v. Hurt, 527 F.3d 1347, 1356 (D.C.
Cir. 2008) (citation omitted). For the first prong,
“[j]udicial scrutiny of counsel's performance must
be highly deferential” and defendant must
“overcome the presumption that under the circumstances,
the challenged action might be considered sound trial
strategy.” Strickland v. Washington, 466 U.S.
668, 689 (1984) (internal quotation marks and citation
omitted). “The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. It is
the petitioner's burden to show that counsel's errors
were “so serious” that counsel could not be said
to be functioning as the counsel guaranteed by the Sixth
Amendment. Harrington v. Richter, 562 U.S. 86, 104
(2011). The Court must consider “counsel's overall
performance, ” Kimmelman v. Morrison, 477 U.S.
365, 386 (1986), and “indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance, ”
Strickland, 466 U.S. at 689.
Furthermore,
the defendant must meet the second Strickland prong
and “affirmatively prove prejudice.” Id.
at 693. That is, “[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 669. See also Cullen v.
Pinholster, 563 U.S. 170 (2011) (To find prejudice, the
petitioner must show that there is “a substantial, not
just ...