United States District Court, N.D. Mississippi, Aberdeen Division
For Dwight Bowling, Defendant: Brandi Denton Gatewood, LEAD ATTORNEY, THE GATEWOOD LAW FIRM< PLLC, Ocean Springs, MS; Christi Rena McCoy, CHRISTI R. MCCOY, ATTORNEY, Oxford, MS; Vicki Lachney Gilliam, THE GILLIAM FIRM, PLLC, Clinton, MS.
For USA, Plaintiff: Paul D. Roberts, U.S. ATTORNEY'S OFFICE, Oxford, MS.
GLEN H. DAVIDSON, SENIOR UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on the motion of Dwight Bowling to vacate, set aside, or correct his sentence  under 28 U.S.C. § 2255. Bowling alleges that his attorney rendered ineffective assistance of counsel by failing to perfect an appeal of his sentence prior to the expiration of the appeal deadline. The government has responded to the motion, and Bowling has replied. The parties have offered evidence and testimony in a hearing on the issues, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be dismissed without prejudice.
A. Facts and Procedural Posture
The facts and procedural posture of this case are inextricably enmeshed because the movant, Dwight Bowling, alleges that his trial counsel provided ineffective assistance by failing to abide by a procedural rule, namely, to file a timely notice of appeal. The facts of this case arise under complex circumstances. All of Bowling's legal troubles arose out of allegations of sexual misconduct with minor boys over a period of years. During the time leading up to his federal guilty pleas, sentencing, and, ultimately, incarceration, Bowling was defending multiple federal criminal charges, multiple state criminal charges, and multiple state civil suits. He was also going through a divorce. To say the least, he was embroiled in a multitude of lawsuits, criminal and civil. Counsel appointed by this court to defend Bowling against the federal criminal charges also represented him in his divorce, in the state civil suits -- and coordinated her efforts with those of counsel appointed to represent Bowling against the state criminal charges.
On September 22, 2010, a federal Grand Jury returned a 5-count indictment  against Dwight Bowling, charging him with 1 count of harassment of a witness under 18 U.S.C. § 1512(c)(2) and 4 counts of coercion or enticement of a minor under 18 U.S.C. § 2423(a). Dwight Bowling entered guilty pleas on April 27, 2011 , pleading guilty to one count of Obstruction of Justice under 18 U.S.C. § 1512(c)(2), and two counts of Transportation of a Minor in Interstate Commerce with Intent to Engage in Sexual Activity under 18 U.S.C. § 2423(a).
At the August 16, 2011, sentencing hearing, the Court  reviewed the Presentence Investigation Report and determined the United States Sentencing Guideline range to be from 135 months to 168 months. The Court then departed upward from the Guidelines and sentenced Bowling to a term of 300 months incarceration. . Bowling and his attorney were surprised at the length of the sentence, and, immediately
after sentencing, counsel told Bowling that she would seek an appeal on his behalf. After further discussion, Bowling became angry and entered into a heated exchange with trial counsel, during which he cursed and lunged at her. Law enforcement officers had to remove him and others from the room. The Court entered Judgment on August 22, 2011. . As such, the deadline to file a Notice of Appeal with the Court became September 5, 2011, 14 days later. Fed. R. App. P. 4(b)(1)(A).
In separate criminal proceedings in state court, Bowling had pled guilty to 14 counts of various sex crimes involving at least 3 minors. These pleas were offered under Alford v. North Carolina, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and Bowling did not admit guilt. Bowling's sentencing on these state criminal charges took place in Monroe County Circuit Court on August 30, 2011. Immediately prior to the state sentencing hearing, Bowling and his son, Russ, told state trial counsel (and federal counsel, who also attended the hearing) that Bowling wished to withdraw his guilty pleas and go to trial. Both attorneys advised him that the state court would never grant such a request, but he did not believe them. The situation again devolved into a shouting match, and Bowling again lunged at and cursed federal trial counsel. Trial counsel testified at the § 2255 hearing that during that exchange, both Bowling and Russ told her that they were going to hire private counsel, and Bowling told her that he did not want her to file another paper on his behalf. Bowling could not remember whether he said that or not, and his son Russ had no memory of the exchange, either. In addition, Russ was not present during the entire conversation. Neither Bowling nor his son could, therefore, affirmatively refute counsel's testimony. On the other hand, given the several heated exchanges among trial counsel, Bowling, and his son, counsel could be mistaken as to when the exchange occurred.
On the same day (August 30, 2011), Bowling's federal appointed counsel filed a Motion  to Appoint [Other] Counsel in the instant case. Judge Pepper denied the motion on October 18, 2011, after the September 5, 2011, deadline to seek an appeal had expired. . On October 24, 2011 (63 days after the Court entered the Judgment, but only 6 days after the Court denied the motion to appoint other counsel), Bowling filed a Notice of Appeal. . Although the Notice of Appeal had been filed after the 14-day deadline, the appeal nonetheless proceeded through briefing. On September 24, 2012, the government moved in the Fifth Circuit Court of Appeals to dismiss the appeal as untimely. The Fifth Circuit granted the motion and dismissed Bowling's appeal on October 24, 2012. Bowling's counsel then filed a Motion to Reinstate Appeal that same day. In paragraphs 15 and 16 of that motion, counsel averred, " Appellant [Bowling] at all times indicated his desire for an appeal," that she " was specifically instructed not to file another document on [Bowling's] behalf," and that she " attempted to protect his rights by requesting new counsel for [Bowling]." The Fifth Circuit denied the motion to reinstate Bowling's appeal on ...