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Dowty v. United States

United States District Court, D. South Dakota, Central Division

April 24, 2014



ROBERTO A. LANGE, District Judge.

Petitioner Earl David Dowty filed this pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on July 5, 2013. Doc. 1 Dowty is in federal custody having pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), on May 18, 2011. United States v. Dowty, CR 11-30026-RAL, Doc. 26. On August 16, 2011, this Court sentenced Dowty to 120 months of imprisonment, with supervised release of three years thereafter and responsibility for restitution and a special assessment. CR 11-30026-RAL, Doc. 38. Dowty timely appealed his sentence to the United States Court of Appeals for the Eighth Circuit, which dismissed his appeal "based upon his valid and enforceable waiver of his appellate rights." United States v. Dowty, 490 F.Appx. 828, 829 (8th Cir. 2012) (per curiam). The Eighth Circuit entered judgment on October 26, 2012. CR 11-30026, Doc. 51. Dowty did not file a petition for a writ of certiorari to the United States Supreme Court. Doc. 1

Now before the Court is Dowty's § 2255 petition, which raises the following grounds for relief: (1) conviction obtained by a plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea; (2) conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure; and (3) denial of effective assistance of counsel. Doc, 1. In the same petition, Dowty also alleges that this Court lacked jurisdiction over his underlying criminal action. Doc. 1 at 6.

On December 13, 2013, the Court screened Dowty's petition and ordered the Government to file an answer, motion, or other response. Doc. 12. The Government filed a motion to dismiss on January 10, 2013. Doc. 16. Dowty has since filed seven submissions. Docs. 17-23. Having considered the arguments in this matter, this Court grants the Government's motion to dismiss and denies Dowty's § 2255 petition for relief.

I. Summary of Facts[1]

On March 15, 2011, Dowty was indicted on two counts of being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1), in the first of three federal indictments of Dowty. CR 11-30026-RAL, Doc. 1. At the time of his initial appearance in that case, Dowty was already in federal custody on a criminal complaint charging him with Possession of a Stolen Firearm and being a Felon in Possession of a Firearm. CR 11-30008-RAL, Doc. 3.

Dowty entered into a plea agreement. CR 11-30026-RAL, Does. 22, 26.[2] In exchange for Dowty pleading guilty to Count II of the Indictment in CR 11-30026-RAL, the Government agreed to dismiss Count I of the same Indictment, as well as the charges pending against Dowty in CR 11-30008-RAL and CR 11-30027-RAL.[3] CR Doc. 22. As part of the Plea Agreement, Dowty signed a Factual Basis Statement. CR Doc. 24, In pertinent part, the Factual Basis Statement stated:

On or about the 24th day of November, 2010, in the District of South Dakota, Earl D. Dowty, having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess and receive a firearm, to wit: a Remington Game Master Model 760, serial number S9161 (hereinafter "the firearm"), which firearm had been shipped and transported in interstate commerce and foreign commerce, in violation of 18 U.S.C. § 922(0(1).
On or about August 20, 2004, the Defendant was convicted of attempted aggravated assault, a crime of violence, in Fall River County, and sentenced to four years incarceration at the South Dakota State Penitentiary. On or about the 24th day of November, 2010, Defendant, a convicted felon, did knowingly possess the firearm while in Rosebud, Todd County, South Dakota. Defendant pawned the firearm for $50.00 at Pro Pawn, in Mission, South Dakota, with a due date of December 23, 2010, and signed his name to the pawn ticket. Defendant did not return to retrieve the firearm. The firearm had been shipped and transported in interstate commerce, produced, and manufactured outside the state of South Dakota.

CR Doc. 24.

On May 18, 2011, this Court held a change of plea hearing in Dowty's case. CR Doc. 26. At the outset of that hearing, Dowty took an oath to answer all questions truthfully and confirmed his understanding that failure to do so could result in subsequent prosecution. CR Doc. 46 at 3-4. The Court then asked Dowty whether he was satisfied with the representation he had received from his attorneys, and Dowty replied, "Yes." CR. Doc. 46 at 5. In response to further questioning, Dowty also indicated that he had ample opportunity to talk with his attorneys about the charges against him and how he should respond to those charges. CR. Doc. 46 at 5-6.

Next, this Court posed a series of questions to determine whether Dowty was competent to change his plea, and to ensure that such plea was being entered into knowingly and voluntarily. CR Doc. 46 at 4-11. After concluding that Dowty was competent to proceed with the change of plea hearing, this Court reviewed the nature of the charge to which Dowty was pleading guilty and informed Dowty of the maximum penalties associated with the relevant charge.[4] CR Doc. 46 at 8-9. Dowty confirmed his understanding of the maximum penalties and his awareness that he would be giving up certain rights upon pleading guilty to a felony charge, including his right to a jury trial. CR Doc. 46 at 9-11.

Before accepting Dowty's plea, this Court engaged in the following colloquy with Dowty:

THE COURT: Did you carefully read and understand the Plea Agreement before signing it?
THE COURT: Did you go over the Plea Agreement with your attorneys before signing it?
THE COURT: Was there anything left out of the Plea Agreement that you thought was ...

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