Fowler v. United States

• Decision Date: 29 September 2011
• Docket Number: Case No. 8:06-cr-186-T-17MAP,Case No. 8:11-cv-379-T-17MAP
• Citation: Fowler v. United States, Case No. 8:06-cr-186-T-17MAP, Case No. 8:11-cv-379-T-17MAP (M.D. Fla. Sep 29, 2011)
• Parties: MARK FOWLER, v. UNITED STATES OF AMERICA.
• Court: U.S. District Court — Middle District of Florida

MARK FOWLER, v. UNITED STATES OF AMERICA.

Case No. 8:06-cr-186-T-17MAP

Case No. 8:11-cv-379-T-17MAP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: September 29, 2011

ORDER

This cause is before the Court on Mark Fowler's timely-filed 28 U.S.C. §2255 motion to vacate, set aside, or correct an allegedly illegal sentence (hereinafter "motion to vacate" or "motion"). (Doc. cv-1; cr-162). A review of the record demonstrates that the motion to vacate must be denied.

PROCEDURAL HISTORY

A federal grand jury in Tampa, Florida, returned an indictment charging defendant Mark Fowler with two counts of possession of firearms as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). D-9.¹ Fowler proceeded to trial, and a jury found him guilty on both counts. D-99. This Court sentenced Fowler to 240 months incarceration (120 months on each count, to run consecutively), to be followed by three years supervised release. D-150 at 32-33. Although the indictment charged Fowler pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e), this Court did not sentence him pursuant to that statute.

Fowler directly appealed his conviction, D-144, and the Eleventh Circuit consideredthe following issues in affirming his sentence:

1. This Court did not plainly err and violate the ex post Facto clause by determining Fowler's advisory sentencing Guidelines level pursuant to the 2007 version of the sentencing Guidelines;

2. This Court did not plainly err by grouping Fowler's two counts of conviction before determining Fowler's total offense level; and

3. Fowler's 240-month sentence is substantively reasonable.

United States v. Fowler, 342 Fed. App'x 520 (11th Cir. 2009). Fowler's petition for certiorari was denied by the Supreme Court. Fowler v. United States, 130 S. Ct. 2371 (2010).

On February 23, 2011, Fowler timely filed a motion and memorandum pursuant to 28 U.S.C. § 2255. D-cv-1, D-cv-2. In his motion, Fowler raises a number of grounds for relief, alleging violations of his Fifth and Sixth Amendment rights occurring during his criminal prosecution and on appeal. Id. As a result, Fowler claims he is entitled to a "new-trial or a reasonable plea agreement." D-cv-2 at 16.

FACTUAL BACKGROUND

On July 22, 2003, Samuel James Dunbar was shot and killed on Olive Street in Lakeland, Florida. Presentence Investigation Report ("PSR") ¶ 8, D-9 at 1-2. He died of a single shot to the forehead. PSR ¶ 8. Medical examiners determined that the shot had been fired from at least three to three-and-a-half feet away. PSR ¶ 8. Several witnesses gave information regarding the shooting and leading to Fowler as the possible shooter. PSR ¶ 8.

Detectives found Fowler at his home a short distance away. PSR ¶ 9. During a search of the home, detectives found a ski mask, a .38 caliber handgun, a holster, and a plastic bag containing bullets in the attic. PSR ¶ 9. Fowler admitted hiding those items inhis attic. PSR ¶ 10. Forensics tests confirmed that the .38 caliber handgun had been used to shoot Dunbar. PSR ¶ 9. Detectives also found a 9mm Interarms Brigadier semiautomatic pistol, a variety of ammunition, and a t-shirt bearing Dunbar's blood inside a cardboard box on top of the washing machine. PSR ¶ 9.

Fowler claimed he had shot Dunbar in self defense. PSR ¶ 10. He said he and Dunbar had been involved in a drug transaction when Dunbar had pulled out a gun. PSR ¶ 10. He claimed that the ski mask, gun, holster, and bag of bullets all had belonged to Dunbar and that, when Dunbar had been distracted, Fowler had knocked the gun out of Dunbar's hand, recovered the gun, and pulled it through the ski mask hole. PSR ¶ 10. He said that, when Dunbar had charged at him, he had shot Dunbar in the forehead and then had recovered all of the items before fleeing to his home, where he had hidden the items in his attic. PSR ¶ 10.

Fowler was charged in state court with the murder of Dunbar, and a jury found him guilty of second degree murder. PSR ¶ 11. The state court judge sentenced him to serve 25 years incarceration, but the Florida Second District Court of Appeal reversed the conviction, holding that Fowler had presented a prima facie case of self defense and that the State had not carried its burden of rebutting that defense and proving Fowler's guilt beyond a reasonable doubt. PSR ¶ 11; see Fowler v. State, 921 So.2d 708 (Fla. 2d DCA. 2006). On March 13, 2006, the State dismissed its case against Fowler. PSR ¶ 11.

In preparation for sentencing in this case, the United States Probation Officer prepared the PSR using the United States Sentencing Commission Guidelines Manual effective November 1, 2007. PSR ¶19. Fowler did not object to the use of that guidelines manual in the determination of his advisory guidelines range. See PSR Addendum. Theprobation office also stated that Fowler's two counts of conviction should be grouped pursuant to USSG §§3D1.1- 3D1.5 to determine Fowler's guideline's offense level. PSR ¶20. Fowler did not object to the grouping of the two counts. See PSR Addendum.

The probation office stated Fowler had used a firearm in connection with the death of another person so, pursuant to USSG §2K2.1(c)(2), the probation office used the most analogous guideline, USSG §2A1.2 (applicable to Second Degree Murder) to determine Fowler's base offense level. PSR ¶¶ 22, 23. Pursuant to §2A1.2, Fowler had a base offense level of 38 because he had been charged in state court with first degree murder and convicted of second degree murder, and the United States could prove by a preponderance of the evidence that he had committed second degree murder. PSR ¶ 23. Fowler had a total offense level of 38. PSR ¶ 30. Fowler's extensive criminal history resulted in a criminal history score of 8, noting that he had committed the offenses in this case which he was on probation for another offense, adding another two points to his criminal history score pursuant to USSG §4A1.2(d), and noting that the had committed the offenses in this case less than two years following his release from custody for other offenses, adding another criminal history point pursuant to USSG §4A1.1(e). PSR ¶¶ 38, 39. Therefore, Fowler had a criminal history score of 11 and a criminal history category of V. PSR ¶ 40. Although a guidelines score of 38 and a criminal history category of V placed Fowler within a guidelines range of imprisonment of 360 months to life, 18 U.S.C. § 924(a)(2) limited his maximum sentence to 120 months imprisonment on each count, so his guidelines range of imprisonment became 120 months imprisonment on each count pursuant to USSG §5G1.2(d). PSR ¶¶ 77, 78.

Fowler objected to the probation office's determination of his offense level, assertingthat this Court should not use the guideline applicable to second degree murder because his state court murder conviction had been reversed on appeal and the evidence at trial had proven only that Fowler had used a gun in connection with involuntary manslaughter, not second degree murder. D-150 at 6-7. He argued, therefore, that this Court should determine that he had a base offense level of 18 pursuant to USSG §2A1.4, rather than 38 pursuant to §2A1.2. D-150 at 7.

In response, the United States asserted that the evidence at trial had shown that Fowler had gone to meet Dunbar with the intent to kill him. D-150 at 8. Although Fowler had claimed that Dunbar had pulled a gun on him and he then had grabbed the gun away and shot Dunbar in self-defense, the United States pointed out to this Court that the blood pattern analysis expert had testified that Dunbar had been shot "right smack in the forehead," refuting Fowler's claim. D-150 at 8. Furthermore, although Fowler had claimed that he had never met Dunbar, a neighbor testified that she had previously seen Fowler and Dunbar speaking to each other in Fowler's yard. D-150 at 8-9. The United States argued further that the evidence had shown that the second gun (the Interarms 9mm) had been found on top of the bloody shirt Fowler had been wearing at the time he had shot Dunbar, both of which had been hidden beneath something else. D-150 at 9. This Court stated that it recalled the evidence presented at trial. D-150 at 9. Fowler persisted, stating that he was making an "Apprendi type argument that [his] client wasn't charged with murder and so that issue is not before the jury." D-150 at 10. He argued that Fowler was being punished for something he had not been charged with. D-150 at 10.

This Court ruled:

During this trial the government proved in this Court's opinion by apreponderance of the evidence that the defendant committed the offense of second degree murder, and unless for record purposes we need to put anything else on the record, for any appeal in this case, the Court is satisfied with the statement I have just made.

D-150 at 12. This Court adopted all of the undisputed factual statements and guideline applications contained in the PSR and determined that Fowler had a total guidelines offense level of 38, with a criminal history category of V. D-150 at 13. After much discussion of Fowler's extensive criminal history, D-150 at 29-32, this Court sentenced Fowler to serve 240 months imprisonment (the statutory maximum of 120 months on each count, with the terms to run consecutively), to be followed by three years supervised release, D-150 at 32-33. This Court found that the sentence imposed was sufficient but not greater than necessary to comply with the statutory purposes of sentencing. D-150 at 36.

STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The benchmark for judging any claim of ineffective assistance of counsel, however, is 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 v. Washington, 466 U.S....