Clowers v. United States
| Decision Date | 16 February 2012 |
| Docket Number | 4:09-cv-99,Case No. 4:06-cr-11 |
| Parties | EUGENE WADE CLOWERS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
EUGENE WADE CLOWERS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
Case No. 4:06-cr-11
4:09-cv-99
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at WINCHESTER
ENTERED: February 16, 2012
Federal prisoner Eugene Wade Clowers moves pursuant to 28 U.S.C. § 2255 for post-conviction relief. [Court Doc. No. 37]. After reviewing the record, the Court concludes that the motion will be denied and dismissed with prejudice. The record conclusively shows that the motion is without merit and Clowers is not entitled to any relief under § 2255. There is no need for an evidentiary hearing.
I. Statute of Limitations, 28 U.S.C. § 2255(f)(1)(a)
The government argues that the § 2255 motion should be dismissed on the ground it is time-barred by the one-year statute of limitation in 28 U.S.C. § 2255(f)(1)(a). The Court concludes that the § 2255 motion is not time-barred.
28 U.S.C. § 2255(f)(1)(a) provides that the one-year limitation period commences to run from the date on which the judgment of conviction becomes final. A judgment of conviction becomes final at the conclusion of direct review. Brown v. United States, 20 Fed. Appx. 373 (6th Cir. 2001); Shropshire v. United States, 2011 WL 4064704, * 2 (E.D. Tenn. Sept. 13, 2011).
On June 2, 2008, the Sixth Circuit Court of Appeals affirmed the judgment of conviction and sentence, and dismissed the direct appeal. United States v. Clowers, 280 Fed. Appx. 496 (6th Cir.
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2008). Clowers had 90 days within which to file a petition for writ of certiorari with the United States Supreme Court. Rule 13, Rules of the Supreme Court of the United States. His judgment of conviction became final when the 90-day time limit for filing a petition for writ of certiorari in the Supreme Court expired on September 1, 2008. Clay v. United States, 537 U.S. 522, 532 (2003); Johnson v. United States, 2012 WL 171379, * 2 (6th Cir. Jan. 23, 2012); Shropshire, 2011 WL 4064704, at * 2; Campbell v. United States, 2009 WL 3415162, * 2 (E.D. Tenn. Oct. 19, 2009). The one-year statute of limitation under 28 U.S.C. § 2255(f)(1)(a) commenced to run on September 1, 2008. The deadline for Clowers to file his § 2255 motion was September 1, 2009.
On September 22, 2009, the Clerk of this District Court received by mail Clower's pro se motion for post-conviction relief under 28 U.S.C. § 2255. [Court Doc. No. 37]. Clowers was in the custody of the United States Bureau of Prisons at the Federal Correctional Complex (FCC), United States Penitentiary (USP) in Tuscon, Arizona. To determine the date when Clowers filed his § 2255 motion, the Court applies the prisoner mailbox rule. The § 2255 motion is deemed to be filed when Clowers delivered it over to the proper prison officials for mailing. Houston v. Lack, 487 U.S. 266, 270-72 (1988); Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008); Anderson v. United States, 39 Fed. Appx. 132, 135-36 (6th Cir. 2002); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999).
There is a dispute concerning the date when Clowers delivered his § 2255 motion to prison officials for mailing. The motion is dated as being signed by Clowers on August 28, 2009. Accompanying the § 2255 motion is a cover letter dated August 29, 2009, which is signed by Clowers and addressed to the Court Clerk's office in Winchester, Tennessee. This does not necessarily mean that Clowers actually delivered his § 2255 motion to prison officials for mailing on August 28-29, 2009. The envelope containing the § 2255 motion is post-marked as being mailed from FCC/USP Tucson on September 10, 2009. This postmark is not conclusive proof that Clowers
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delivered his § 2255 motion to prison officials for mailing on September 10, 2009. It is possible that Clowers could have delivered his § 2255 motion to prison officials prior to September 10, 2009, but the prison officials delayed mailing it.
Based on the envelope showing the postmark of September 10, 2009, the government contends that Clowers mailed his § 2255 motion on September 10, 2009. If true, this mailing would have occurred after the September 1, 2009, deadline for Clowers to file his § 2255 motion had elapsed and the motion would be time-barred by the statute of limitation, 28 U.S.C. § 2255(f)(1)(a).
Clowers asserts that he delivered his § 2255 motion to prison officials at USP Tuscon for mailing on August 28, 2009. Clowers submits his declaration to this effect signed under penalty of perjury pursuant to 28 U.S.C. § 1746. [Court Doc. No. 45-2, p. 2]. Giving Clowers the benefit of the doubt and in the absence of any additional evidence from the prison officials at USP Tuscon, the Court finds that he delivered his § 2255 motion to federal prison officials for mailing on August 28, 2009. See e.g. Brand, 526 F.3d at 925; Goins v. Sanders, 206 Fed. Appx. 497, 498 n. 1 (6th Cir. 2006); United States v. Damon, 59 Fed. Appx. 619, 621 (6th Cir. 2003); Anderson, 39 Fed. Appx. at 135-36; Towns, 190 F.3d at 469. Applying the prisoner mailbox rule, the Court finds that Clowers effectively filed his § 2255 motion on August 28, 2009, within the applicable statute of limitations. His § 2255 motion is not time-barred by the statute of limitations.
II. Facts and Procedural History
The background and facts of this case are set forth by the Sixth Circuit in Clowers, 280 Fed. Appx. 496. On January 17, 2004, a 17-year old female, Ashley Bennett, was reported missing from her residence in Estill Springs, Tennessee. Tennessee law enforcement officers investigated and determined that Bennett was living with Clowers in Columbia, South Carolina. The police obtained information that Clowers was having sexual relations with Bennett. A police officer with the Estill
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Springs Police Department made a sworn affidavit of criminal complaint against Clowers for statutory rape. Based on a clear showing of probable cause, a state court in Franklin County, Tennessee issued a warrant for Clower's arrest.
On January 30, 2004, local law enforcement officers in Columbia, South Carolina arrested Clowers on the statutory rape charge pursuant to the Tennessee arrest warrant. After being arrested, Clowers indicated that Bennett was at a local shopping mall, where she was found.
On February 2, 2004, a state court in Richland County, South Carolina issued a valid search warrant authorizing the search of Clowers' residence for any evidence of child pornography and exploitation of a minor. [Court Doc. No. 40-1, p. 14]. During the execution of the search warrant, deputies from the Richland County Sheriff's Department seized three computers from Clowers along with numerous videotapes and photographs of suspected child pornography.
One of the seized videotapes contained footage of Clowers engaging in sexual activity with Ashley Bennett. A portion of the videotape depicted Bennett bound in handcuffs and a rope, blindfolded and nude, while Clowers fondled her. Another portion of the videotape depicted Bennett performing oral sex on Clowers.
The police also seized a videotape containing footage of Clowers digitally manipulating the vagina of a ten-year old girl during a bath while forcing the girl to hold his penis. The same videotape showed Clowers positioning his penis near the mouth of the ten-year old girl while she was sleeping in a chair.
On February 4, 2004, Clowers was interviewed by investigators in South Carolina. During the interview, Clowers admitted that he had broadcast video over the Internet of Bennett performing oral sex on him. Clowers identified the ten-year old girl on the videotape as his niece, Jessica Mangrum, in Tennessee.
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Investigators showed Ashley Bennett a photograph taken from a videotape, and Bennett identified herself, Clowers, and the location depicted. Bennett said that she and Clowers started having sexual relations in the summer of 2003 when she was 17 years old. Bennett ran away from home and asked Clowers for help in leaving Tennessee. In January 2004, Clowers transported Bennett by automobile from Tennessee to his residence in Columbia, South Carolina. Bennett further told investigators that on one occasion, Clowers blindfolded her while she was naked, tied her hands above her head, and videotaped Clowers fondling her. On another occasion, Clowers set up a web camera and broadcast video in an Internet chat room of Bennett performing oral sex on Clowers. On two occasions during the summer of 2003, Clowers videotaped himself having sexual intercourse and oral sex with Bennett.
Three computers seized from Clowers during the execution of the search warrant were turned over to a computer laboratory at the South Carolina Law Enforcement Department for forensic analysis and processing. Officials in South Carolina were able to recover 1,017 deleted images from one of the computers. Hundreds of deleted images depicted nude children in various non-sexual poses, four images depicting minor females engaged in sexual acts, and eleven videos depicting minors engaged in sexual acts. On another computer, investigators in South Carolina found a large number of images and videos depicting minors engaged in sexual acts.
Investigators interviewed Angela Mangrum, the sister of Clowers. Angela Mangrum is the mother of the ten-year old niece depicted in the...
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