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United States v. Stowe

United States District Court, S.D. Texas, Houston Division

November 7, 2017

United States of America
Lawrence Stowe


          Gray H. Miller United States District Judge.

         Defendant Lawrence Stowe, proceeding pro se, filed a motion and supplemental motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Docket Entries No. 189, 194). The Government filed a motion to dismiss (Docket Entry No. 200), to which Defendant filed a response (Docket Entry No. 201).

         Having reviewed the section 2255 motions, the motion to dismiss, the response, the record, and the applicable law, the Court GRANTS the motion to dismiss and DENIES the section 2255 motion and supplemental motion for the reasons that follow.

         Background and Claims

         On September 7, 2012, and pursuant to a written plea agreement, Defendant pleaded guilty to conspiracy to violate the Food, Drug and Cosmetic Act [“FDCA”], with the intent to defraud and mislead, by causing the introduction of new drugs into interstate commerce that were misbranded and unapproved, in violation of 18 U.S.C. § 371 (count one); with intent to defraud and mislead, introducing and delivering for introduction into interstate commerce a vaccine commonly referred to as Immune Factor G40 that was misbranded in that the promotional material was false and misleading, in violation of 21 U.S.C. §§ 331(a), 333(a)(2) and 352(a) and 18 U.S.C. § 2 (count 23); and, with intent to defraud and mislead, introducing and delivering into interstate commerce, a vaccine commonly referred to as Immune Factor G40, which was a new drug within the meaning of the FDCA and not approved for use in the United States, in violation of 21 U.S.C. §§ 331(d) and 333(a)(2) (count 24).

         On May 2, 2014, this Court sentenced Defendant to a total of 78 months in prison, 60 months for the conspiracy count and 18 months each for the substantive counts, to run concurrently with each other, but consecutively to the 60 months imposed for the conspiracy count. The Court also imposed a three-year term of supervised release and $419, 358.00 in restitution.

         Defendant raises the following grounds for habeas relief in this proceeding:

(1) Ineffective Assistance of Counsel:
(a) “Petitioner received ineffectiveness of counsel during the plea phase when counsel failed to subject the prosecutions [sic] case to meaningful advesarial [sic] testing, [and] failure to advise regarding the actual consequences.”
(b) “Counsel failed to pursue petitioner's defense and to investigate the FDA reports which the FDA did not follow procedural due process of law.”
(c) Counsel failed to raise mens rea as a defense.
(d) Counsel failed to challenge calculations and relevant conduct used at sentencing.
(e) Counsel “failed to raise the claim that his client was not a manufacturer or promoter of the immune-therapy products, ” which would have established his actual innocence.
(2) Actual Innocence:
(a) “Actual innocence is factual innocence and petitioner's actions do not give rise to criminality.”
(b) “Petitioner Stowe is actually innocent pursuant to the provisions of the [FDCA] as he is not a manufacturer of drugs and at all times worked through licensed physicians.”

         The Government argues that these claims are barred by the valid waiver of collateral review provision in Defendant's written plea agreement. It also argues that the claims have no merit.

         Legal Standards

         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).

         Ineffective Assistance of Trial Counsel

         The United States Supreme Court's decision in Strickland v. Washington provides the familiar two-pronged test for establishing a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687 (1984). A court need not address both components of the inquiry if the defendant makes an insufficient showing on one. Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) (“Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.”).

         A counsel's performance is strongly presumed to fall within the wide range of reasonable professional assistance. Premo v. Moore, 562 U.S. 115, 121 (2011). To overcome that presumption, a habeas petitioner must “show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. at 121-22 (internal quotations omitted). The standard for judging counsel's representation is a deferential one. “The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms, ' not whether it deviated from best practices or most common custom.” Id.

         “A plea of guilty admits all the elements of a formal criminal charge and waives all non-jurisdictional defects in the proceedings leading to conviction.” United States v. Owens, 996 F.2d 59, 60 (5th Cir. 1993). A guilty plea also eliminates objections to searches and seizures that violate the Fourth Amendment. United States v. Cothran, 302 F.3d 279, 285-86 (5th Cir. 2002). Where, as here, a defendant has pleaded guilty and waived his right to file a motion pursuant to section 2255, the only ineffective assistance of counsel claim to survive the waiver is one claiming the ineffective assistance “directly affected the validity of waiver or the plea itself.” United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).

         Moreover, a habeas petitioner must show that, “but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial” and that going to trial “would have given him a reasonable chance of obtaining a more favorable result.” United States v. Batamula, 823 F.3d 237, 240 (5th Cir. 2016) (en banc) (internal citation and quotation omitted).

         The pleadings of a pro se prisoner litigant are reviewed under a less stringent standard than those drafted by an attorney, and are provided a liberal construction. Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless, a pro se litigant is still required to provide sufficient facts to support his claims, and “mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.” United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). Accordingly, “[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertion on a critical issue in his pro se petition . . . to be of probative evidentiary value.” Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

         Defendant raises the following claims for ineffective assistance of trial counsel.

         A. Plea Hearing

         Defendant argues that counsel was ineffective at the plea hearing in failing to subject the prosecution's case to meaningful adversarial testing and failing to advise regarding the actual consequences. He complains that he was coerced into pleading guilty, promised a one-year sentence, and not advised of the relevant conduct provisions applicable at sentencing. Defendant's perfunctory allegations are unsupported and are refuted by the record in this case.

         In the written plea agreement executed by Defendant at the plea hearing, Defendant agreed to the following factual basis for his plea:

In or about April 2003, the defendant established the Stowe Foundation as an entity with its mission to further medical research. The address given by the defendant for “The Foundation” was 6340 Lake Worth Boulevard, Fort Worth, Texas. This address was not a physical location, but a post office mailbox drop. In or about 2006, the defendant owned and operated Stowe Biotherapy Inc. (Stowe Biotherapy), a medical clinic located at 8431 La Mesa Boulevard in La Mesa, California. The defendant utilized Stowe Biotherapy and the Foundation to advertise, promote and distribute drugs and biological products that had not been reviewed and approved by the Food and Drug Administration (FDA) for the treatment of diseases in humans. Defendant knew that FDA approval is required before a drug or biological product can be introduced into interstate commerce for the treatment, ...

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