USA v. Lowe

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIE JAMES LOWE, JR., 	:
Petitioner, 	:
CIVIL ACTION NO. 20-0319-WS-MU
:
vs. 	CRIMINAL NO. 13-0005-WS-MU
:
UNITED STATES OF AMERICA,
:
Respondent.
REPORT AND RECOMMENDATION
This cause is before the undersigned on Petitioner Willie James Lowe, Jr.’s motion
to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 35), and
the government’s response in opposition (Doc. 43).1 This action has been referred to the
undersigned 	for 	entry 	of 	a 	report 	and 	recommendation 	pursuant 	to 	28 	U.S.C. 	§
636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). Following consideration of all relevant
pleadings 	in 	this 	case, 	it 	is 	recommended 	that 	Lowe’s 	§ 	2255 	motion 	be
DENIED/DISMISSED without an evidentiary hearing, because “’it plainly appears from
the face of the motion and [the] annexed exhibits and the prior proceedings in the case
that the movant is not entitled to relief[.]’” Broadwater v. United States, 292 F.3d 1302,
1303 (11th Cir. 2003) (citation omitted); see also Rosin v. United States, 786 F.3d 873,
878 (11th Cir.) (“It is well-settled that the district court is not required to grant an
1 	Petitioner has not filed a reply to the government’s response in opposition. (See
Docket Sheet).
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evidentiary hearing when the defendant’s claims are affirmatively contradicted by the
record evidence, nor is a hearing required if the claims are grounded upon generalizations
that are unsupported by the record evidence.”), cert. denied, 	U.S. 	, 136 S.Ct. 429,
193 L.Ed.2d 320 (2015).
FINDINGS OF FACT
On January 31, 2013, an indictment was returned against Willie James Lowe. Jr.,
charging him with one count of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). (Doc. 1, PageID. 1 (“On or about November 9, 2012, in the
Southern District of Alabama, Northern Division, the defendant, WILLIE JAMES LOWE,
JR.[,] having been convicted of a crime punishable by imprisonment for a term
exceeding one (1) year, to-wit: Felon in Possession of a Firearm, on January 9, 2012,2
in [t]he United States District Court for the Southern District of Alabama, case number
10-00120-WS, did knowingly possess, in and affecting interstate commerce, two (2)
firearms, namely, a Cobra Ent Model, CA-380, .380 caliber pistol, serial number
0P068569 and an Intratec Model, TEC-DC9, 9mm pistol, serial number D016865[,] [i]n
violation of Title 18, United States Code, Section 922(g)(1).”)) (footnote added).
On March 21, 2013, Lowe entered a counseled guilty plea to the sole count of
the indictment (see Doc. 40), pursuant to a plea agreement (see Doc. 20). As relevant
here, the plea agreement indicates that Lowe specifically acknowledged his desire to
waive certain elucidated constitutional rights and plead guilty to being a felon in
2 	This was the date Lowe was sentenced. See United States v. Lowe, Criminal No.
2:10-00120-WS, Docket Sheet Entry for January 9, 2012. Lowe actually entered his counseled
guilty plea on December 22, 2010. See id., Docket Sheet Entry for December 22, 2010.
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possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (see id., PageID. 55) and,
further, acknowledged that the Factual Resume attached to the agreement was “true
and correct.” (Id., PageID. 57; see also id., PageID. 63 (“I have consulted with my
counsel and fully understand all my rights with respect to the offense charged in the
Indictment pending against me. I have read this Plea Agreement and carefully reviewed
every part of it with my attorney. I understand this agreement, and I voluntarily agree to
it. I hereby stipulate that the Factual Resume, incorporated herein, is true and accurate
in every respect, and that had the matter proceeded to trial, the United States could
have proved the same beyond a reasonable doubt.”)). The Factual Resume reads, in
relevant measure, under the heading Offense Conduct, as follows:
On November 8, 2012, two armed suspects robbed a Church’s
Chicken Restaurant in Selma, Alabama. During the robbery, one suspect
fired a shot from his handgun telling the employees of the restaurant that it
was taking “too long” for them to open the safe and get them the money.
The investigation of the robbery led to Lowe being a person of interest. At
that time, Lowe was serving a federal sentence term of supervised
release.
On November 9, 2012, Selma officers and Lowe’s probation officer
traveled to a residence where Lowe was believed to be hiding[,] obtained
consent to search the residence, and found him lying on the floor in a
bedroom next to the bed. They conducted a search of the residence.
Underneath the mattress in the bed next to Lowe was a loaded Cobra Ent
Model, CA-380 caliber pistol[,] serial number 0P068569. Located inside
the bedroom closet was an Intratec Model, TEC-DC9, 9mm pistol, serial
number D016865 that had 30 rounds in the magazine. A plastic bag with
Lowe’s federal judgment order and some of his state probation papers
were found in the closet next to the pistol.
At that time, Lowe had been convicted, in January 2012, of a
felony, namely, felon in possession of a firearm in [t]he United States
District Court of the Southern District of Alabama, case number 10-00120-
WS.
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Lowe’s possession of the above described firearms affected
interstate commerce because neither firearm was manufactured in the
State of Alabama.
(Id., PageID. 65).
During the course of his guilty plea proceeding on March 21, 2013, Lowe stated
he signed the plea agreement and then confirmed that by signing the document he was
acknowledging that he “received a copy of it, . . . had an opportunity to read it and
review it with [his] attorney, that [he] fully understand[s] the terms and conditions of the
plea agreement and the factual resume, and that [he] agree[s] with it.” (Doc. 40,
PageID. 143-44).3 Lowe also confirmed that no one had made any promises of any kind
to get him to plead guilty or otherwise forced, pressured or threatened him in any
manner to plead guilty. (See id., PageID. 144). Importantly, Lowe acknowledged that he
had a chance to look at his prior felony convictions and speak to his attorney about
them. (See id., PageID. 144-45). At the time of this proceeding, Lowe was on
supervised release and acknowledged that his release was subject to revocation such
that the revocation hearing and sentencing hearing would be conducted on the same
date. (See id., PageID. 145). The Court then went on to explain to Lowe the
constitutional rights he would lose (upon conviction), generally how the sentencing
guidelines work, the constitutional rights he was waiving by entering a guilty plea, the
elements of the offense, etc. (See id., PageID. 146-49). Following this discussion, Lowe
3 	Lowe also acknowledged that he read the indictment, reviewed it with his
attorney, fully understood the charge in the indictment and that he was fully satisfied with
representation given to him by defense counsel and had fully discussed all facts surrounding the
charge. (Doc. 40, PageID. 143).
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stated in open court that he committed the acts set forth in the statement of offense
conduct portion of his factual resume. (Id., PageID. 149).
THE COURT: All right. Then I find that the facts and acts to which you
have admitted support a violation of the charge contained in Count 1 of
the indictment. How do you now plead to that charge, guilty or not guilty?
THE DEFENDANT: Guilty, Your Honor.
THE COURT: Then it is the finding of this Court in the case of
United States versus Willie James Lowe, Jr., that you are fully competent
and capable of entering an informed plea, that you are aware of the nature
of the charge and the consequences of your plea, and that your plea of
guilty is a knowing and voluntary plea supported by an independent basis
in fact containing each of the essential elements of the offense. Your plea
is therefore accepted, and you are now adjudged guilty of that offense.
(Id., PageID. 149-50).
The presentence investigation report (“PSR”) described Lowe’s criminal history in
no small detail (see Doc. 27, PageID. 97-102), including Petitioner’s December 22,
2010 guilty plea conviction in this Court for being a felon in possession of a firearm, for
which he received a custodial sentence in excess of one year on January 9, 2012 (see
id., PageID. 101-02). Indeed, at the time of the commission of the instant offense, Lowe
was on supervised release based on that 2010 conviction. (Id., PageID. 101). As a
result, in addition to being sentenced on the instant case, Lowe was pending revocation
of his SRT in the 2010 case based upon his arrest on the instant charge. (See id.,
PageID. 101 & 102).
During his combined sentencing and revocation proceeding on June 17, 2013
(see Doc. 41, PageID. 155 (“Mr. Lowe, we’re here today for a sentencing hearing in
case 13-05 and a revocation hearing in case 10-120.”)), Lowe expressly acknowledged
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his understanding of the contents of the PSR (id., PageID. 155) and later apologized for
the crimes he committed, including illegally possessing the firearms (see id., PageID.
157 (“First of all, I’d like to say that I’m terribly sorry for the actions of the crimes that I
committed or whatever like that. I know I stood before you a little over a year ago
and I gave you my word that I would be a better person in the future than I was in
the past. And I would just like for . . . you to show me mercy. And I’m sorry, and I
apologize to everybody that’s here . . . . I’m terribly sorry. Thank you.”)) (emphasis
added). The Court, after noting the potential sentence Lowe faced in state court if state
charges were pursued (see id., PageID. 158-59), Lowe’s past criminal history, including
his recent past appearance before the Court (see id., PageID. 159 (“[W]e had a
discussion at that time about your conduct on supervised release. It didn’t work out too
well, obviously.”)), imposed a custodial sentence of 120-months imprisonment in this
action. (Id., PageID. 159-60).4
4 	As for the revocation portion of the proceeding, the Court noted that “Lowe was
convicted in this Court on January 9, 2012, for the offense of felon in possession of a firearm,
received a sentence of 21 months, followed by a three-year supervised release term. Date of
supervision began on August 24, 2012, and was due to expire on August 23, 2015. While on
supervised release, the Probation Office filed a petition to revoke supervised release[.]” (Id.,
PageID. 164-65). Lowe waived his right to a revocation hearing and admitted the violations set
forth in the revocation petition. (See id., PageID. 165). The Court found Lowe in violation of the
terms and conditions of supervised release (id.) and imposed a sentence of 24 months
“consecutive to the sentence of 120 months previously imposed in case 13-05.” (Id., PageID.
168; see also id., PageID. 167 (“You appeared before me before and essentially promised me
that you would stay out of trouble and continue on the straight and narrow, and it didn’t happen.
You, while you’re on supervised release, not only did you possess a gun but you possessed it in
the course of an armed robbery which as we’ve already talked about is an extremely serious
offense and given your criminal history could result in you spending the rest of your life in prison
should the State of Alabama decide that’s the direction they want to go.”)).
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Lowe filed a notice of non-appeal on June 17, 2013 (Doc. 30, Page ID. 113 (“I
have been advised by the Court and by my attorney of my right to appeal my conviction
and sentence. I have consulted with my attorney, who has explained the advantages
and disadvantages of taking an appeal. I have had sufficient time to consider my
options and require no further explanation. After consideration, it is my desire to inform
the Court that I do not wish to take an appeal.”)). On July 2, 2013, the Court entered
final written judgment. (Doc. 31).
On June 4, 2020, Lowe filed his motion to vacate in this Court (Doc. 35, PageID.
136 (Lowe’s declaration that he delivered his motion to vacate to the mail room staff at
the federal prison where he is housed on June 4, 2020)). In his motion to vacate, Lowe
raises the following claims for relief, all grounded on the Supreme Court’s decision in
Rehaif v. United States, 	U.S. 	, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019) : (1) the §
922(g) conviction must be vacated because this Court lacked subject matter jurisdiction;
(2) the indictment was defective/insufficient because it failed to state an offense against
the United States;5 (3) the guilty plea was involuntary and unknowingly given; and (4)
the government did not meet its burden of showing that he had knowledge of his status
as being a person prohibited from possessing a firearm. (See Doc. 35, PageID. 132).6
5 	Lowe parenthetically argues that the factual basis of the plea did not cure the
defective indictment and was insufficient to establish an offense against the United States. (See
Doc. 35, PageID. 132).
6 	In his motion to vacate, Lowe addresses the one-year limitations period by
essentially arguing that the Supreme Court’s decision in Rehaif, supra, announced a new rule
substantive law retroactively applicable to cases on collateral review. (See Doc. 35, PageID. 134-
35).
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In its response in opposition, the government stakes the position that Lowe’s
jurisdictional claim has no merit and that he has procedurally defaulted his remaining non-
jurisdictional claims. (See generally Doc. 43).
CONCLUSIONS OF LAW
A. 	Legal Standard. 	Section 2255 reads, in relevant part, as follows: “A
prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the 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, may move the court which imposed
the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Thus,
as the language of § 2255(a) makes clear, “the grounds for collateral attack on a final
judgment . . . are limited[,]” Gayle v. United States, 2020 WL 4339359, *3 (S.D. Fla. July
28, 2020) and are “reserved for transgressions of constitutional rights and for that narrow
compass of other injury that could not have been raised in direct appeal and would, if
condoned, result in a complete miscarriage of justice.” Lynn v. United States, 365 F.3d
1225, 1232 (11th Cir.) (citations and internal quotation marks omitted), cert. denied, 543
U.S. 891, 125 S.Ct. 167, 160 L.Ed.2d 154 (2004).
B. 	Rehaif v. United States. In Rehaif v. United States, 	U.S. 	, 139
S.Ct. 2191, 204 L.Ed.2d 594 (2019), decided on June 21, 2019, the Supreme Court held
that “in a prosecution under 18 U.S.C. § 922(g) and 924(a)(2), the Government must
prove both that the defendant knew he possessed a firearm and that he knew he
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belonged to the relevant category of persons barred from possessing a firearm.” Id. at
2200. Here, all of Lowe’s claims for relief hinge on the Supreme Court’s decision in
Rehaif. (See Doc. 35, at PageID. 132 (Petitioner links all of his claims to Rehaif)).
Unfortunately for Lowe, Rehaif did not announce a new rule of constitutional law;
instead, it merely clarified the statutory elements for prosecution under 18 U.S.C. §
922(g). In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019); see also In re Price, 964
F.3d 1045, 1049 (11th Cir. 2020) (“Rehaif did not announce a new rule of constitutional
law[.]”). However, even had Rehaif announce a new rule of constitutional law, it would
not be one which Lowe could take advantage of because the Eleventh Circuit has made
clear that the holding in Rehaif was not made retroactive to cases on collateral review
by the Supreme Court. In re Palacios, supra, 931 F.3d at 1315; In re Price, supra, 954
F.3d at 1049 (“Rehaif did not announce a new rule of constitutional law and, even if it
did, it has not been made retroactive to cases on collateral review by the Supreme
Court.”). Therefore, because all of Lowe’s claims hinge on Rehaif and the Supreme
Court has not made that decision retroactive to cases on collateral review, this Court
should deny and dismiss Petitioner’s motion to vacate.7 Nevertheless, even assuming
7 	In addition to the foregoing, the undersigned simply notes that had the
Government not waived its statute-of-limitations affirmative defense (see Doc. 43), compare
Pritchett v. United States, 808 Fed.Appx. 980, 982 (11th Cir. Apr. 13, 2020) (recognizing that
the government can waive its period-of-limitations affirmative defense) with Sandvik v. United
States, 177 F.3d 1269, 1271 (11th Cir. 1999) (explaining that the period of limitations contained
in § 2255 is “a garden-variety statute of limitations” and not a jurisdictional bar), the undersigned
would have recommended that the Court summarily dismiss Lowe’s motion to vacate as time-
barred.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted on
April 24, 1996 and added a new subdivision to 28 U.S.C. § 2255 providing for a one-year period
of limitations within which federal prisoners must file their motions to vacate pursuant to 28
(Continued)
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U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir.), cert. denied, 531 U.S.
971, 121 S.Ct. 410, 148 L.Ed.2d 316 (2000). The one-year limitations period begins to run from
the latest of four possible events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
Here, Lowe did not file a direct appeal and, therefore, his conviction became final
fourteen (14) days after this Court entered its July 2, 2013 written judgment, that is, on July 16,
2013, the date on which the time for filing a notice of appeal with this Court expired. Compare
Fed.R.App.P. 4(b)(1)(A)(i) with Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir.
1999) (“[W]here a defendant does not pursue a direct appeal, the conviction becomes final
when the time expires for filing a direct appeal.”) and Murphy v. United States, 634 F.3d 1303,
1307 (11th Cir. 2011) (“[W]e have concluded that when a defendant does not appeal his
conviction or sentence, the judgment of conviction becomes final when the time for seeking that
review expires.”). Lowe did not file the instant motion until June 4, 2020, which is obviously
more than one year after his conviction became final, thus violating the one-year limitation
period found in § 2255(f)(1).
Lowe does not argue that § 2255(f)(2) applies to his case (see Doc. 35, PageID. 134-
35); instead, as aforesaid, he argues that Supreme Court’s decision in Rehaif, supra,
announced a new rule of substantive law retroactively applicable to cases on collateral review
(see id.), a § 2255(f)(3) argument. However, Lowe’s motion is not “timely under § 2255(f)(3)
because Rehaif does not constitute a new right made retroactively applicable [to cases on
collateral review].” Young v. United States, 2020 WL 4334037, *1 (11th Cir. Apr. 29, 2020),
citing In re Palacios, supra, 931 F.3d at 1315. In addition, Lowe’s motion is untimely under §
2255(f)(4) “because the discovery of a new legal theory does not constitute a discoverable
‘fact.’” Id., citing Barreto-Barreto v. United States, 551 F.3d 95, 99 (11th Cir. 2008). And, finally,
because Lowe nowhere argues that the time-bar should be equitably tolled, see id., citing
Holland v. Florida, 560 U.S. 631, 649 (2010), the undersigned would have recommended that
the instant motion to vacate be dismissed as time-barred pursuant to 28 U.S.C. § 2255(f) had
the government not waived this affirmative defense.
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Rehaif applies retroactively, Lowe is not entitled to relief for the reasons hereinafter
delineated.
1. 	Jurisdictional Claim. Lowe initially contends that his conviction must be
vacated because this Court lacked subject-matter jurisdiction. (Doc. 35, PageID. 132).
The Eleventh Circuit’s recent decision in United States v. Moore, 954 F.3d 1322 (11th
Cir. 2020), puts Lowe’s jurisdictional claim to rest. As the appellate court explained in
Moore,
[T]he law is clear: the omission of an element in an indictment does not
deprive the district court of subject matter jurisdiction. A defective
indictment only affects jurisdiction when it fails to allege an offense against
the United States. So long as the conduct described in the indictment is a
criminal offense, the mere omission of an element does not vitiate
jurisdiction.
Id. at 1336. And as recognized in Moore, “[t]he standard for whether an indictment
sufficiently alleges a crime is not demanding[,]” such that an indictment is sufficient if it
tracks the statutory language and states the approximate time and place of the alleged
crime. Id. at 1332. In this case, as was the case in Moore, the indictment returned
against Lowe meets the standard for alleging a crime, reading, in pertinent measure, as
follows:
On or about November 9, 2012, in the Southern District of
Alabama, Northern Division, the defendant, WILLIE JAMES LOWE, JR.[,]
having been convicted of a crime punishable by imprisonment for a term
exceeding one (1) year, to-wit: Felon in Possession of a Firearm, on
January 9, 2012, in the United States District Court for the Southern
District of Alabama, case number 10-00120-WS, did knowingly possess,
in and affecting interstate commerce, two (2) firearms, namely, a Cobra
Ent Model, CA-380, .380 caliber pistol, serial number 0P068569 and an
Intratec Model, TEC-DC9, 9mm pistol, serial number D016865[,] [i]n
violation of Title 18, United states Code, Section 922(g)(1).
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(Doc. 1, PageID. 1). This indictment, like the one in Moore, “tracks—and cites—the
language from 18 U.S.C. § 922(g)(1), which states: ‘It shall be unlawful for any person .
. . who has been convicted in any court of[] a crime punishable by imprisonment for a
term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or
ammunition.’” Moore, supra, 954 F.3d at 1333, quoting 18 U.S.C. § 922(g)(1). Thus, this
“indictment [against Lowe] was clearly sufficient prior to Rehaif[]” and while it certainly
does not allege that Lowe was aware of his status as a felon at the time he possessed
the firearms (see Doc. 35, PageID. 132 (“Of particular relevance here[,], the Indictment
did not include the scienter element required by statute, as recognized in Rehaif.”)), “the
text of 18 U.S.C. § 922(g)(1) contains no such requirement.” Moore, 954 F.3d at 1333.
In Rehaif, the Supreme Court interpreted the statutory language of 18
U.S.C. § 922(g) as requiring a defendant to have knowledge of his status.
Reading this knowledge requirement into the statute while also holding
that indictments tracking the statute’s text are insufficient would be
incongruous. Although the government may be well advised to include
such mens rea allegations in future indictments, that language is not
required to establish jurisdiction.
Id.
Based upon the foregoing, it is clear that the indictment returned against Lowe
meets the standard for alleging a crime, as it tracks and cites the statutory language in
18 U.S.C. § 922(g)(1), identifies the specific firearms he possessed, and states the
approximate time and place of the alleged crime; the absence of the mens rea element
(that is, that Lowe knew of his status as a felon at the time he possessed the firearms)
did not deprive this Court of jurisdiction. Moore, supra, 954 F.3d at 1333 & 1336.
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In addition, the Supreme Court’s decision on the merits in Rehaif supports the
rejection of Lowe’s jurisdictional argument. “[T]he indictment the Supreme Court
evaluated in Rehaif omitted the mens rea element[,]” Moore, supra, 954 F.3d at 1336,
the same defect Lowe attacks in this case (Doc. 35, PageID. 132). And since the
Supreme Court went on to address the merits of Rehaif’s conviction without addressing
subject matter jurisdiction, despite jurisdiction being a threshold issue that the Supreme
Court must consider, Moore, 954 F.3d at 1336, citing Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (“On
every writ of error or appeal, the first and fundamental question is that of jurisdiction,
first, of this court, and then of the court from which the record comes. This question the
court is bound to ask and answer for itself, even when not otherwise suggested, and
without respect to the relation of the parties to it.” (internal quotation marks omitted)), it
is clear that the mens rea defect identified in Rehaif, the same as identified herein, is
not a defect depriving this (or any district) court of subject-matter jurisdiction. Id. (“Had
the defect in Rehaif—the same defect we consider here—been jurisdictional, the
Supreme Court would have ruled on that ground rather than on the merits.”).
For the foregoing reasons, therefore, the undersigned recommends that the
Court find that any defect in the instant indictment did not deprive it of subject matter
jurisdiction.
2. 	Procedural Default. The Government stakes the position in its response
in opposition that Lowe’s remaining non-jurisdictional claims—the indictment was
defective/insufficient, his plea was unknowing and involuntary, and the government did
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not meet its burden of showing he had knowledge of his status as being a prohibited
person possessing a firearm8—are procedurally defaulted. (See Doc. 43, PageID. 184-
87). “Under the procedural default rule, a defendant generally must raise an available
challenge to a conviction or sentence either before the district court or on direct appeal,
‘or else the defendant is barred from presenting that claim in a § 2255 proceeding.’”
Magluta v. United States, 660 Fed.Appx. 803, 809 (11th Cir. Aug. 30, 2016) (quoting
Lynn, supra, 365 F.3d at 1234), cert. denied, 	U.S. 	, 137 S.Ct. 2292, 198 L.Ed.2d
750 (2017);9 see also Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690,
1693, 155 L.Ed.2d 714 (2003) (“The background for our discussion is the general rule
that claims not raised on direct appeal may not be raised on collateral review unless the
petitioner shows cause and prejudice.”); McKay v. United States, 657 F.3d 1190, 1196
(11th Cir. 2011) (“Under the procedural default rule, ‘a defendant generally must
advance an available challenge to a criminal conviction or sentence on direct appeal or
else the defendant is barred from presenting that claim in a § 2255 proceeding.’”), cert.
8 	Lowe’s overarching contention is that the indictment was defective/insufficient
and his plea was not knowing and voluntary because the mens rea element of the crime was
not expressly mentioned in the indictment, plea agreement, or plea colloquy. (See Doc. 35,
PageID. 132). Indeed, Lowe goes on to specifically attack the government’s failure to meet its
burden to show that he had knowledge of his status as being a person prohibited from
possessing a firearm, which the undersigned finds to be a sufficiency of the evidence attack.
As reflected above, the Eleventh Circuit’s decision in Moore, supra, effectively lays to
rest Lowe’s defective indictment argument inasmuch as Moore makes clear that the indictment
in this case meets the standard for alleging an offense against the United States. See Moore,
supra, 954 F.3d 1333 & 1336.
9 	“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir. R. 36-2.
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denied, 568 U.S. 830, 133 S.Ct. 112, 184 L.Ed.2d 52 (2012). “This rule generally
applies to all claims, including constitutional claims[,]” Lynn, supra, 365 F.3d at 1234
(citations omitted), and certainly applies to sufficiency of the evidence claims, see
Aguero v. United States, 580 Fed.Appx. 748, 751-54 (11th Cir. Sept. 12, 2014)
(acknowledging the procedural default doctrine applies to sufficiency of the evidence
claims); Cox v. United States, 2013 WL 1909429, *3 (N.D. Ala. May 2, 2013) (applying
procedural default rule to Petitioner’s sufficiency of the evidence claim),
defective/insufficient indictment claims, see Magluta, supra, 660 Fed.Appx. at 809
(acknowledging the procedural default doctrine applies to challenges to the sufficiency
of an indictment), and challenges to the voluntariness of a plea, see, e.g., Estupinan v.
United States, 2019 WL 3254955, *2 (S.D. Fla. July 1, 2019) (finding that a defendant
who fails to raise an available challenge to the voluntariness of a guilty plea on direct
appeal is barred from raising that claim in a collateral proceeding pursuant to the
procedural default doctrine), report and recommendation adopted sub nom. Cajiao v.
United States, 2019 WL 3252227 (S.D. Fla. July 19, 2019).
Here, of course, Lowe did not file a direct appeal and, indeed, filed a notice of
non-appeal (Doc. 30); therefore, his sufficiency of the evidence, defective/insufficient
indictment and involuntary/unknowing plea claims are procedurally barred from being
raised in his § 2255 motion.10 However, there are two exceptions to the procedural
default rule, neither which applies in this case. “The exceptions are: (1) for cause and
10 	The undersigned notes as well that Lowe did not raise these two claims to the
district court at any time during the course of his guilty plea proceeding or at sentencing.
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prejudice, or (2) for a miscarriage of justice, or actual innocence.” McKay, supra, 657
F.3d at 1196 (citation omitted).
Under the first exception, a defendant must show cause for not raising the
claim of error on direct appeal and actual prejudice from the alleged error.
Under the second exception, a court may allow a defendant to proceed
with a § 2255 motion despite his failure to show cause for procedural
default if a constitutional violation has probably resulted in the conviction
of one who is actually innocent.
Lynn, supra, 365 F.3d at 1234 (internal citations and quotation marks omitted; emphasis
in original).
This Court can easily dispense of both exceptions. Lowe does not argue to this
Court that the cause and prejudice exception applies (see Doc. 35) and, therefore, this
Court need “not address this exception.” McKay, supra, 657 F.3d at 1196 (“Because
McKay does not argue on appeal that the cause and prejudice exception applies—nor
for that matter did he do so at the district court—we do not address this exception.”).
The second narrow exception does not apply because Lowe has not supplied any
evidence to this Court establishing his actual, factual innocence of the charged crime of
being a felon in possession of a firearm. Compare Schlup v. Delo, 513 U.S. 298, 324,
115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995) (finding that, to be credible, a claim of
actual innocence “requires petitioner to support his allegations of constitutional error
with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence--that was not presented at trial.”) and
id. at 327, 115 S.Ct. at 867 (“To establish the requisite probability, the petitioner must
show that it is more likely than not that no reasonable juror would have convicted him in
the light of the new evidence.”) with McQuiggin v. Perkins, 569 U.S. 383, 386, 133 S.Ct.
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1924, 1928, 185 L.Ed.2d 1019 (2013) (“[T]enable actual-innocence gateway pleas are
rare: ’[A] petitioner does not meet the threshold requirement unless he persuades the
district court that, in light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.’” (emphasis supplied)) and San
Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.) (“The actual innocence exception is
‘exceedingly narrow in scope,’ and the petitioner must demonstrate that he is factually
innocent rather than legally innocent.”), cert. denied, 565 U.S. 843, 132 S.Ct. 158, 181
L.Ed.2d 73 (2011). Indeed, Lowe makes no explicit or implicit actual innocence
argument (see Doc. 35); instead, he simply attacks the government’s failure to show he
had knowledge of his status as one prohibited from possessing a firearm (see id.,
PageID. 132). However, nothing about Petitioner’s sufficiency-of-the-evidence argument
is grounded in newly-discovered evidence that was not known at the time of entry of his
guilty plea nor does this argument establish his actual, factual innocence of being a
felon (that is, a prohibited person) in possession of a firearm. Moreover, Lowe cannot
credibly claim he is actually innocent, because, at the time of this offense, he had
already been sentenced to a custodial sentence exceeding a year in this very Court—as
made clear in the factual resume attached to the plea agreement, the plea colloquy, the
PSR, and at sentencing—and knew that he was prohibited from possessing a firearm
because of his status as a convicted felon, as his previous conviction in this Court (for
which he was still on probation at the time of the instant offense, probation which was
revoked on the day he was sentenced in this case) was for the same crime, that is,
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being a felon in possession of a firearm11 (see, e.g., Doc. 20, PageID. 65; Doc. 27,
PageID.101-02; Doc. 40, PageID. 143-45 & Doc. 41, PageID. 164-65). Accordingly, this
is not one of those rare cases in which the actual innocence exception is applicable.
Because neither exception is applicable, federal review of the claims he raised in his §
2255 motion (Doc. 35), save with respect to the jurisdictional claim, is precluded.12
11 	And when this Court entered its written judgment in United States v. Lowe, 10-
00120-WS, one of the conditions of supervised release highlighted in the judgment was that
Lowe was prohibited from possessing a firearm. See United States v. Lowe, 10-00120-WS,
Doc. 30, PageID. 98 (“The defendant shall not possess a firearm, destructive device, or
any other dangerous weapon.”).
12 	If the Court finds it necessary to address Lowe’s non-jurisdictional claims, it
should find those claims unavailing under the applicable plain error review standard, see United
States v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019) (applying plain error review to Rehaif
indictment claim). The undersigned would simply note that even assuming plain error, Lowe
cannot “show a reasonable probability that, but for the error, the outcome of the proceeding
would have been different[.]” Molina-Martinez v. United States 578 U.S. 	, 136 S.Ct. 1338,
1343, 194 L.Ed.2d 244 (2016) (citation omitted; internal quotation marks omitted). Lowe
stipulated in the factual resume, made a part of the plea agreement, and admitted during the
plea colloquy that he had been convicted of being a felon in possession of a firearm in this
Court, a crime for which he served more than one year in custody, and that he possessed two
handguns at the time of his arrest in the instant case. Thus, because the record before this
Court indisputably establishes that Lowe knew he was a felon and that he possessed two
firearms, he cannot demonstrate that the errors he cites to affected his substantial rights or the
fairness, integrity or public reputation of judicial proceedings. See, e.g., United States v.
Johnson, 805 Fed.Appx. 740, 743 (11th Cir. Feb. 26, 2020) (finding defendant could not show
that error[s] affected his substantial rights where “indictment alleged he had four prior felony
convictions, he stipulated before trial that he was a felon, and he admitted at sentencing that he
had been convicted of multiple felony offenses for which he served lengthy terms in prison
before possessing the firearm.”), cert., denied, 	U.S. 	, 	S.Ct. 	, 2020 WL 3405984
(June 22, 2020). Indeed, it would be quite the perversion of justice for this Court (or any court)
to find that the outcome of Lowe’s proceeding would have been different given that when
Petitioner was arrested for the instant violation of § 922(g)(1), he was at that moment on
supervised release after serving more than one year in prison following his December 22, 2010
conviction and January 9, 2012 sentencing in this Court for violating § 922(g)(1) (being a felon
in possession of a firearm). In short, if anyone should know that he is a person prohibited from
possessing a firearm, it is Lowe who was at the time of his arrest in this case on supervised
release after serving a custodial sentence of more than one year following his December 22,
2010 conviction and January 9, 2012 sentencing for violating § 922(g)(1) (being a felon in
possession of a firearm).
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Therefore, the Magistrate Judge recommends that the Court deny/dismiss Lowe’s
motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255.
C. 	Certificate of Appealability. Pursuant to Rule 11(a) of the Rules
Governing § 2255 Proceedings, the undersigned recommends that a certificate of
appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district
court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.”). The habeas corpus statute makes clear that an applicant is
entitled to appeal a district court’s denial of his habeas corpus petition only where a
circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A
certificate of appealability may issue only where “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2). Here, Lowe’s
habeas petition is being denied on the merits, with respect to his jurisdictional claim,
such that a COA should issue only when the Petitioner demonstrates “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, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542
(2000); see also id. at 483-484, 120 S.Ct. at 1603-1604 (“To obtain a COA under §
2253(c), a habeas prisoner must make a substantial showing of the denial of a
constitutional right, a demonstration that, under Barefoot, includes showing that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’”); see Miller-El v. Cockrell,
537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the
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controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were “adequate to deserve
encouragement to proceed further.”’”), but also on procedural grounds without reaching
the merits of his non-jurisdictional claims, such that “a COA should issue [only] when
the prisoner shows . . . that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling[,]” Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). As for the
jurisdictional claim, it is recommended that the Court find that reasonable jurists could
not debate whether Lowe’s § 2255 habeas petition should be resolved in a different
manner or that the issues presented are adequate to deserve encouragement to
proceed further. Moreover, given the applicability of the procedural default doctrine (as
well as Petitioner’s inability to establish one of the narrow exceptions to application of
this doctrine) with respect to Lowe’s non-jurisdictional claims, a reasonable jurist could
not conclude that this Court is in error for summarily dismissing this portion of Lowe’s
motion to vacate, nor could a reasonable jurist conclude that petitioner should be
allowed to proceed further with respect to his non-jurisdictional claims. Slack, supra,
529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
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petitioner should be allowed to proceed further.”). Accordingly, petitioner is not entitled
to a certificate of appealability.
Rule 11(a) further provides: “Before entering the final order, the court may direct
the parties to submit arguments on whether a certificate should issue.” If there is an
objection to this recommendation by either party, that party may bring this argument to
the attention of the district judge in the objections permitted to this report and
recommendation. Brightwell v. Patterson, CA 11-00165-WS-C, Doc. 14 (order from
Eleventh Circuit denying petitioner a certificate of appealability in a case in which this
exact procedure was outlined in the report and recommendation); see also Castrejon v.
United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same
procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29,
2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing
for same procedure), report and recommendation adopted sub nom. Griffin v.
Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).
CONCLUSION
The Magistrate Judge is of the opinion, based on the foregoing discussion, that
Petitioner’s motion to vacate, set aside or correct his sentence (Doc. 35) should be
DENIED/DISMISSED and this case dismissed with prejudice. Petitioner is not entitled to
a certificate of appealability and, therefore, he is not entitled to appeal in forma
pauperis.
NOTICE OF RIGHT TO FILE OBJECTIONS
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A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific
written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P.
72(b); S.D.ALA. GenLR 72(c). The parties should note that under Eleventh Circuit Rule
3-1, “[a] party failing to object to a magistrate judge’s findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error if
necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an
objection must identify the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this the 24th day of November, 2020.
s/P. Bradley Murray
UNITED STATES MAGISTRATE JUDGE
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