Turner v. United States of America (INMATE3)

Filing 32

REPORT AND RECOMMENDATIONS that the 28 U.S.C. § 2255 motion filed by Turner be denied, as the claims therein do not entitle him to any relief; Objections to R&R due by 6/9/2009. Signed by Honorable Wallace Capel, Jr on 5/27/2009. (cc, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION K E V IN W. TURNER, P e titio n e r, v. UNITED STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) ) Civil Action No. 1:07cv863-MEF (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE K e v in W. Turner ("Turner") asks the court to vacate, set aside, or correct his sentence p u rs u a n t to 28 U.S.C. 2255. After considering Turner's 2255 motion, the supporting and o p p o s i n g submissions, and the record in this case, the court concludes that an evidentiary h e a rin g is not required and that, pursuant to Rule 8(a), Rules Governing Section 2255 P ro c e e d in g s in the United States District Courts, the motion should be denied. I. PROCEDURAL HISTORY O n September 23, 2003, a federal grand jury returned a seven-count indictment a g a in s t Turner, charging him with two counts of sexual exploitation of a child, in violation o f 18 U.S.C. 2251(a) and 2251(c)(1)(A), respectively (Counts 1 and 2); three counts of d is trib u tio n of child pornography, in violation of 18 U.S.C. 2252(a)(1), 2252(a)(2), and 2 2 5 2 A (a )(1 ), respectively (Counts 3 through 5); one count of production of child p o rn o g ra p h y, in violation of 18 U.S.C. 2252A(a)(3) (Count 6); and one count of possession o f child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) (Count 7). T u rn e r entered into a plea agreement with the United States, and on May 14, 2004, h e appeared before a magistrate judge and pled guilty to Counts 3 through 7 of the in d ictm e n t. Sentencing was held on August 26, 2005. The district court determined that a 5 -le v e l enhancement pursuant to U.S.S.G. 2G2.2(b)(2) was warranted after finding that T u rne r had distributed child pornography with the intent to receive a thing of value. In a d d it i o n , the district court imposed an 8-level upward departure pursuant to U.S.S.G. 5 K 2 .0 and 5K2.8 after finding that Turner's conduct was extreme and outside the "heartland" o f cases. The court sentenced Turner to 360 months in prison for each of Counts 3 through 6 and to 120 months for Count 7, all terms to run concurrently. Turner appealed to the Eleventh Circuit Court of Appeals, and on June 29, 2006 , that c o u r t affirmed his convictions and sentence.1 See United States v. Turner, 187 Fed.Appx. 9 2 7 (11 th Cir. 2006) (unpublished). Turner did not seek certiorari review in the Supreme C o u rt. O n September 10, 2007 (Doc. No. 1), Turner, through counsel, filed this 2255 m o t io n asserting the following claims: 1. 1 T h e original plea agreement should have been enforced, and On direct appeal, Turner argued that (1) the district court erred in imposing a 5-level enhancement under U.S.S.G. 2G2.2(b)(2) because the crimes involved distribution of pornography absent pecuniary gain; (2) the district court abused its discretion by upwardly departing by 8 levels under 5K2.0 and 5K2.8; and (3) his sentence was unreasonable pursuant to United States v. Booker, 543 U.S. 220 (2005). 2 T u rn e r's original guilty plea (entered on December 1, 2003) s h o u ld not have been withdrawn. 2. T u rn e r's second guilty plea (entered on May 14, 2004) was not k n o w in g and voluntary because (a) his mental capacity was im p a ire d at the time of the plea hearing and at sentencing; (b) th e government breached the plea agreement by failing to file a U .S .S .G . 5K1.1 substantial- assistance motion for a downward d e p a rtu re ; (c) his counsel had assured him he would receive a s u b s ta n tia lly lower sentence than the one actually imposed; and (d ) his counsel coerced him into pleading guilty. T u rn e r was deprived of effective assistance of trial counsel for th e following reasons: a. C o u n s e l failed to argue for enforcement of the o rig in a l plea agreement and should not have a llo w e d Turner to withdraw his original guilty p le a . C o u n s e l failed to ensure that the guilty plea T u rn e r entered on May 14, 2004, was knowing a n d voluntary, when (i) Turner's mental capacity w a s impaired at the time he entered the plea and a t his sentencing hearing; (ii) the government b re a ch e d the plea agreement by failing to file a 5 K 1 .1 motion for a downward departure; (iii) c o u n s e l had assured Turner he would receive a lo w e r sentence than the one actually imposed; and (i v ) counsel "coerced" Turner into pleading g u i l t y. C o u n s e l failed to adequately prepare for and in v e stig a te the case. C o u n s e l failed to seek a mental evaluation of T u rne r. C o u n s e l failed to mitigate the offense conduct at 3 3. b. c. d. e. s e n te n c in g . f. C o u n sel failed to argue that a downward d e p a rtu re was not "most likely barred" by the P R O T E C T Act. C o u n s e l failed to cross-examine Probation Officer D a v id Conoly at the sentencing hearing regarding h is interview of the victim. C o u n s e l failed to seek a variance. T u rn e r is actually innocent of the counts of c o n v ic tio n . g. h. 4. T h e government answers that Turner is not entitled to any relief because his claims a re either procedurally barred or meritless. (Doc. No. 20.) Turner was allowed an o p p o rtu n ity to respond to the government's answer and has done so. (Doc. No. 24.) II. A. DISCUSSION N o n -I n e ffe c tiv e Assistance Claims T u rn e r presents substantive claims for relief that (1) the original guilty plea he entered (o n December 1, 2003) was enforceable and should not have been withdrawn and (2) his g u ilty plea of May 14, 2004, was not knowing and voluntary.2 These claims were not raised o n direct appeal. Ordinarily, if an available claim is not advanced on direct appeal, it is d e e m e d procedurally barred in a 2255 proceeding. See Mills v. United States, 36 F.3d See Ground One of 2255 Motion (Doc. No. 1) at 2; Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 16-27. As indicated supra, various sub-issues are encompassed by Turner's claim that his guilty plea entered on May 14, 2004, was not knowing and voluntary. 4 2 1 0 5 2 , 1055-56 (11 th Cir. 1994); Greene v. United States, 880 F.2d 1299, 1305 (11 th Cir. 1 9 8 9 ). A petitioner can avoid this procedural bar by showing both cause for the failure to ra is e the claim on direct appeal and actual prejudice arising from that failure. See United S ta te s v. Frady, 456 U.S. 152, 167-68 (1982); Mills, 36 F.3d at 1055. While Turner does not a d d re ss this cause-and-prejudice standard in his pleadings, he does present various a lle g a t io n s of ineffective assistance of trial counsel where his trial counsel's alleged d e f ic ie n c ie s relate to his substantive claims that his original guilty plea was enforceable and s h o u ld not have been withdrawn and that his later guilty plea was not knowing and voluntary. A c c o rd in g ly, this court will address Turner's underlying substantive claims in the context of th e se related allegations of ineffective assistance of counsel. Turner also presents additional, in d e p e n d en t claims of ineffective assistance of counsel. All of Turner's claims of ineffective a ss ista n c e of counsel are reviewed below in this Recommendation. Also reviewed below is T u rn e r's claim that he is actually innocent of the counts of conviction. B. I n e ffe c tiv e Assistance Claims A claim of ineffective assistance of counsel is governed by the standards of Strickland v . Washington, 466 U.S. 668 (1984). Grossman v. McDonough, 466 F.3d 1325, 1344 (11 th C ir. 2006). Under Strickland's two-part test, a petitioner must demonstrate (1) that " c o u n se l's representation fell below an objective standard of reasonableness" and (2) that " th e re is a reasonable probability that, but for counsel's unprofessional errors, the result of th e proceeding would have been different." Darden v. Wainwright, 477 U.S. 168, 184 (1986) 5 (in ter n a l quotation marks omitted); Chandler v. United States, 218 F.3d 1305, 1313 (11 th Cir. 2 0 0 0 ). S c r u tin y of counsel's performance is "highly deferential," and the court indulges a " s tro n g presumption" that counsel's performance was reasonable. Chandler, 218 F.3d at 1 3 1 4 (internal quotation marks omitted). The court will "avoid second-guessing counsel's p e rf o rm a n c e : It does not follow that any counsel who takes an approach [the court] would n o t have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks a n d brackets omitted). Thus, "[g]iven the strong presumption in favor of competence, the p e t itio n e r 's burden of persuasion though the presumption is not insurmountable is a h e a v y one." Id. U n le ss a petitioner satisfies the showings required on both prongs of the Strickland in q u iry, relief should be denied. Strickland, 466 U.S. at 687. Accordingly, once a court d e c id e s that one of the requisite showings has not been made, it need not decide whether the o th e r one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11 th Cir. 1998). 1. F a ilu r e to Argue That Original Plea Agreement Was E n f o r c e a b le ; Withdrawal of Original Guilty Plea T u rn e r contends that his trial counsel rendered ineffective assistance by failing to a rg u e for enforcement of Turner's original plea agreement and by allowing Turner to w ith d ra w his original guilty plea. See Grounds One & Two of 2255 Motion (Doc. No. 1) a t 2; Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 16-20 & 30. 6 T u rn e r originally pled guilty on December 1, 2003, pursuant to a plea agreement made u n d er Fed.R.Crim.P. 11(c)(1)(C) whereby the government agreed that a sentence of no more th a n 5 years' imprisonment was appropriate. The United States Probation Office then p rep are d a presentence investigation report ("PSI") recommending an extreme upward d e p a rtu re in Turner's sentence. At a March 4, 2004, status hearing regarding, among other m a tte rs , sentencing issues, Turner and his counsel were apprised that the range of punishment p ro v id e d in the plea agreement was not available as an option for the district court to c o n sid e r, that the district court would not accept the plea agreement, and that Turner would th e re f o re be permitted to withdraw his guilty plea if he so chose. See Affidavit of James W. P a rkm a n III (Doc. No. 8) at 3 & 5. After consultation with his counsel, Turner chose to w ith d ra w his guilty plea and was allowed to do so at the hearing. Id.; see Status Hearing (D o c . No. 20, Gov. Exh. B) at 15-16. A d d re ss in g Turner's claim that he rendered ineffective assistance in this regard, T u rn e r's trial counsel3 states in an affidavit filed with this court: A s to the allegation that I should have enforced the plea agreement as to the f iv e years' incarceration[,] [u]nfortunately, it was not the government that re je c te d the plea agreement but the court, leaving the defendant without an a g re e m e n t and without any knowledge as to a sentencing range. Once this o c c u rre d , I discussed the situation with the Petitioner Turner and it was Attorney James W. Parkman III represented Turner during all proceedings in the trial court, including sentencing. Attorney Susan G. James represented Turner on direct appeal and is his counsel in this 2255 action. All allegations of ineffective assistance of counsel asserted (through James) in Turner's 2255 motion concern Parkman's representation of Turner in the trial court proceedings. 7 3 P e titio n e r Turner that insisted we withdraw the plea at this time. I did concur w ith the Petitioner Turner's position. At the time, I clearly felt it was in P e titio n e r Turner's best interest to withdraw the plea. A ffid a v it of Parkman (Doc. No. 8) at 5. The plea agreement that was part of Turner's December 1, 2003, guilty plea was made p u rs u a n t to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Rule 11(c)(3)(A) s ta te s that "[t]o the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C ), the court may accept the agreement, reject it, or defer a decision until the court has re v ie w e d the presentence report." Rule 11(c)(5) provides that if the court intends to reject a plea agreement made under Rule 11(c)(1)(C), the court must inform the parties "on the re c o rd and in open court (or, for good cause, in camera)" that it rejects the plea agreement a n d allow the defendant an opportunity to withdraw his guilty plea. See Fed.R.Crim.P. 1 1 ( c ) ( 5 ) ( A ) - (C ) . H e re , the district court did not expressly state on the record and in open court that it w a s rejecting the plea agreement, but instead informed Turner's counsel in camera that it w o u ld not accept the plea agreement. See Status Hearing (Doc. No. 20, Gov. Exh. B) at 141 5 ; Affidavit of Parkman (Doc. No. 8) at 5. It is undisputed that Turner's counsel relayed this in f o rm a tio n to Turner and that Turner then affirmed in open court that he wanted to withdraw h is guilty plea.4 Status Hearing (Doc. No. 20, Gov. Exh. B) at 15-16. Even allowing that 4 THE COURT: Mr. Turner, do you understand what your client or (continued...) 8 the district court did not adhere to Rule 11(c)(5) by stating on the record and in open court th a t it would not accept the plea agreement, Turner has not established how he was p re ju d ice d by his counsel's failure to challenge the court's lack of adherence to Rule 1 1 (c)(5). Turner could not compel the court to accept the plea agreement. Once the court re je c te d the agreement, it was not enforceable.5 Thus, any failure by counsel to ensure the c o u rt's compliance with Rule 11 here worked no prejudice on Turner. Without an agreement in place, Turner was left with no assurances as to the sentence the court might impose. Thus, c o u n se l's advice to Turner that it was in his best interest to withdraw the plea was not u n re a so n a b le under the circumstances. As the record shows, Turner affirmed to the court his 4 (...continued) what your attorney is representing for you? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that by withdrawing your plea of guilty to the offenses for which you pled guilty in January of this year [sic], that you will now be standing charged with all seven counts as opposed to counts three through seven for which you pled guilty? THE DEFENDANT: Yes, sir. THE COURT: Is it your desire to withdraw your plea of guilty at this time? THE DEFENDANT: Yes, it is. Status Hearing (Doc. No. 20, Gov. Exh. B) at 15. Because the original plea agreement was made under Fed.R.Crim.P. 11(c)(1)(C), the district court could only accept or reject the agreement in its entirety and could not accept only a part of the agreement or otherwise modify its terms. See, e.g., United States v. Dean, 80 F.3d 1535, 1539-41 (11th Cir. 1996). 9 5 d e sire to withdraw his guilty plea. Because Turner fails to show that he was prejudiced by h is counsel's performance in this regard, he is not entitled to any relief based on this claim o f ineffective assistance of counsel. See Strickland, supra, 466 U.S. at 687-89. 2. F a ilu r e to Ensure May 14, 2004, Guilty Plea Was Knowing a n d Voluntary T u rn e r argues that his trial counsel was ineffective for failing to ensure that the guilty p le a he entered on May 14, 2004, was knowing and voluntary.6 See Grounds One & Two of 2255 Motion (Doc. No. 1) at 2; Memorandum of Law in Support of 2255 Motion (Doc. N o . 2) at 20-27. In support of his contention that his guilty plea was not knowing and v o lu n ta ry, Turner asserts that (a) his mental capacity was impaired at the time he entered the p le a and at his sentencing hearing; (b) the government breached a provision of the plea a g re e m en t whereby it agreed to file a motion for a downward departure pursuant to U.S.S.G. 5 K 1 .1 in exchange for Turner's substantial assistance in the investigation and prosecution o f other violations of federal child pornography and obscenity laws; (c) his counsel had a ss u re d him he would receive a sentence substantially lower than the one actually imposed; a n d (d) his counsel "coerced" him into pleading guilty. These claims are addressed serially, b e lo w . a. Im p a ire d Mental Capacity The plea agreement for Turner's May 14, 2004, guilty plea was pursuant to Fed.R.Crim.P. 11(c)(1)(A). 10 6 T u rn e r states that he suffers from a bipolar disorder for which he takes medication and th a t, as a result of his condition, his mental capacity at the time of his May 14, 2004, plea h e a rin g and his subsequent sentencing hearing was impaired to the extent that he could not e n te r a knowing and voluntary plea. See Memorandum of Law in Support of 2255 Motion (D o c . No. 2) at 20-21. The record does not support this claim. The following exchange between the court and Turner took place during the plea c o llo q u y on May 14, 2004: T H E COURT: Okay. How old are you? T H E DEFENDANT: 39. T H E COURT: How far did you go in school? T H E DEFENDANT: Graduated high school, two years of vocational. T H E COURT: Have you been treated for any mental illness or a d d ic tio n to narcotic drugs of any kind? T H E DEFENDANT: No, ma'am. T H E COURT: Are you currently under the care of a physician? T H E DEFENDANT: Yes, ma'am. T H E COURT: What is the condition you are being treated for? T H E DEFENDANT: Bipolar disorder. T H E COURT: You have never been confined to any institution for that c o n d itio n ? T H E DEFENDANT: No, ma'am. 11 T H E COURT: Are you now receiving counseling or medication or b o th ? T H E DEFENDANT: When I was out I was receiving both. Now I am s till on medication. T H E COURT: What medication? T H E DEFENDANT: Nine hundred milligrams of Lithium a day, 40 m illig ra m s of Prozac, one hundred milligrams of Seroquel. T H E COURT: What consequences are there to your failure to take your m e d ic a ti o n ? T H E DEFENDANT: Depression. T H E COURT: Anything else? What about your conduct? T H E DEFENDANT: It would it could have an effect on my conduct. T H E COURT: Have you taken that medication as prescribed while you h a v e been confined? T H E DEFENDANT: Every day. T H E COURT: And what is the consequence of your taking it? T H E DEFENDANT: I feel normal. I can deal with situations as s o m e o n e can that's not on medication. T H E COURT: Does taking the medication have any impact on your a b i lity to understand these proceedings? T H E DEFENDANT: No. T H E COURT: Has it affected negatively in any way your ability to n e g o tiate this plea agreement? T H E DEFENDANT: No, ma'am. 12 T H E COURT: Has it affected your ability to understand your lawyer's re p re se n tatio n s or to make representations to him or to express your desires to h im regarding a plea agreement? T H E DEFENDANT: No, ma'am. M a y 14, 2004, Change of Plea Hearing (Doc. No. 20, Gov. Exh. C) at 4-6. T u rn e r's trial counsel also addresses this claim in his affidavit filed with this court: A s to the allegation that at the second plea the defendant was not mentally c o m p e te n t, such was not the case. I took measures to make sure Petitioner T u rn e r understood the nature of the plea and the consequences, which included th e following: a. In discussions with the Petitioner Turner it was obvious to me that he was well aware of what was happening, b o th at the plea and sentencing. T h a t prior to the sentencing the petitioner sent me several letters which clearly indicate a very clear thought pattern s h o w in g competency and clarity. F u r th e rm o re the petitioner wrote the judge a letter which is clear and concise and which the court received a m e d ic a l letter from Dr. Cox. T h a t I also obtained medical records from the doctor p rio r to sentencing with a final diagnosis that Petitioner T u rn e r now has "normal behavior." T h a t I sent an associate to the jail on August 23, 2005 to ta lk to the jail personnel and Petitioner Turner. Again, P e titio n e r was coherent, aware, and fully understood. T h a t I reviewed Petitioner's medical records and went to s e e his doctor at the Dothan Behavioral Medicine Clinic. N e ith e r the records nor the doctor indicated any legal in s a n ity or medical condition that would prevent a trial or 13 b. c. d. e. f. a plea. A ffid a v it of Parkman (Doc. No. 8) at 5-6. W e ig h in g the averments of counsel against the self-serving and unsupported a lle g a tio n s in Turner's 2255 motion, and considering the record in this case, the court finds th a t Turner has failed to show that his counsel rendered ineffective assistance by allowing h im to enter a guilty plea that was unknowing and involuntary because of his impaired mental c a p a c i t y. Turner also asserts that his impaired mental capacity prevented him from u n d e rs ta n d in g the sentencing proceedings that took place on August 26, 2005. However, as is the case with his claim regarding the plea hearing, his allegations in this regard are selfs e rv in g and unsupported by the record. Therefore, he fails to establish ineffective assistance o f counsel with regard to this claim. Absent a showing of deficient performance by counsel o r any resulting prejudice, Turner is afforded no basis for relief here. See Strickland, 466 U .S . at 687-89. b. G o v e r n m e n t's Breach of Plea A g reem en t Turner contends that the government breached the plea agreement and thereby re n d e re d his guilty plea unknowing and involuntary by failing to file a motion for a threele v e l downward departure pursuant to U.S.S.G. 5K1.1; he then asserts this otherwise d e f au lte d claim as an allegation of ineffective assistance of counsel, arguing that his trial c o u n se l rendered ineffective assistance by failing to raise this issue or to move to withdraw 14 h is plea on the basis of the government's alleged breach. See Memorandum of Law in S u p p o r t of 2255 Motion (Doc. No. 2) at 21-26. T h e plea agreement contained a provision whereby the government agreed to file the d o w n w a rd -d e p arture motion if Turner provided substantial assistance in the investigation and p ro se c u tio n of other violations of federal child pornography and obscenity laws.7 In its a n sw e r to Turner's 2255 motion, the government states that a downward-departure motion w a s not filed in Turner's case because Turner never provided substantial assistance to the g o v e rn m e n t. See United States' Response to 2255 Motion (Doc. No. 20) at 6. Turner, for h is part, presents no evidence that he provided substantial assistance or any assistance to th e government. Nor does he demonstrate that the government failed to exercise good faith in its determination that he did not render substantial assistance or that the government's d e te rm in a tio n in this regard was based on an unconstitutional motive. See Wade v. United S ta te s, 504 U.S. 181, 185-86 (1992); United States v. Nealy, 232 F.3d 825, 831 (11 t h Cir. 2 0 0 0 ). Under the circumstances, this court concludes that Turner has not demonstrated that th e government failed in its responsibilities under the terms of the plea agreement. Counsel c a n n o t be ineffective for failing to raise an issue that would not succeed. See Chandler v. M o o r e , 240 F.3d 907, 917 (11 th Cir. 2001); United States v. Winfield, 960 F.2d 970, 974 (11 th C ir. 1992). Consequently, Turner has not shown that his trial counsel was ineffective for 7 See Plea Agreement at 6; also Sentencing Hearing (Doc. No. 20, Gov. Exh. D) at 3. 15 f a ilin g to raise this issue. c. C o u n se l's Assurances Regarding Sentence T u rn e r asserts that his May 14, 2004, guilty plea was unknowing and involuntary b e c au s e , in pleading guilty, he relied on his trial counsel's assurances that he would receive a sentence of from 7 1/2 to 10 years. See Memorandum of Law in Support of 2255 Motion (D o c . No. 2) at 26-27. He contends that because the district court instead imposed the s ta tu to ry maximum sentence of 360 months, his counsel's advice in this regard constituted in e f f e c tiv e assistance. Id. A d d r e ss in g this claim in the affidavit he filed with this court, Turner's counsel states: A s to the argument of "maximum sentence," there is no question that P etitio n er Turner received the maximum sentence according to the court's in te rp re ta tio n of the guidelines, but not the maximum he could have received h a d we gone to trial. At the time of the second plea, it was my belief that P e tit i o n e r Turner would be in the 10 year range. This was based on my d is c u ss io n s with the prosecutor, my checking the guidelines and the fact that m y investigation revealed that the trial court judge had never departed upward in a sentence. The petitioner is correct that he received no benefit by the plea. S in c e my withdrawal was immediate, I wonder if subsequent counsel moved to withdraw the plea or press for a 5K1.1 departure. At no time did I assure P e titio n e r Turner of the sentence he would receive or that the government w o u ld indeed file a 5K1.1 departure. At no time did I coerce the petitioner in to pleading guilty or fail to prepare for this case. A ffid a v it of Parkman (Doc. No. 8) at 6-7. The PSI prepared by the Probation Office reflected that the maximum statutory p e n a lty faced by Turner for the counts of conviction was 360 months and that because the 16 s e n te n c in g guidelines were advisory, the court could sentence Turner anywhere within the sta tu to ry provisions after considering 18 U.S.C. 3553.8 Further, prior to entering the guilty p lea, Turner had a copy of the plea agreement, which also accurately set forth the statutory l i m its of punishment faced by Turner.9 At the May 14, 2004, plea hearing, the magistrate ju d g e ascertained from Turner that he had read and discussed the plea agreement with his c o u n s e l before signing it, and that he understood the terms of the plea agreement. May 14, 2 0 0 4 , Change of Plea Hearing (Doc. No. 20, Gov. Exh. C) at 6. Turner also affirmed to the c o u rt that he fully understood any differences in the implications for punishment between th e present plea agreement and his previous plea agreement. Id. at 4. At the original plea h e a rin g , the magistrate judge expressly advised Turner that Counts 3 through 6 to which he w a s pleading guilty all carried a statutory maximum sentence of 30 years' imprisonment, w h ile Count 7 carried the statutory maximum of 10 years, and Turner affirmed to the m a g is tra te judge that he understood he faced a maximum punishment of 30 years.1 0 Turner 8 See PSI at 18, 80-81. See Plea Agreement at 2-3. THE COURT: Counts three, four, five and six of the indictment carry the same punishment and count seven carries a different one. But the only difference between the punishment for count seven and the others is that the maximum term of imprisonment for count seven is ten years while maximum term of imprisonment for the other four is 30 years; do you understand that? THE DEFENDANT: Yes, ma'am ..... (continued...) 17 9 10 p l e d guilty to these same counts at his May 14, 2004, plea hearing. Finally, at the latter h e a rin g , Turner also averred to the court that, other than the terms of the plea agreement, no o n e had made any promises or assurances to him as to what would happen if he pled guilty a n d that he had not been forced into pleading guilty. Id. at 7 & 10. T h e court finds that Turner's assertions in his 2255 motion regarding his u n d er s ta n d in g of the sentence he faced are undermined by his own statements to the court d u rin g the plea proceedings regarding his understanding of the possible maximum sentence th a t could be imposed and his affirmations to the court that his guilty plea was not induced b y any promises or assurances other than what was contained in the plea agreement. " S o le m n declarations in open court (at the guilty plea hearing) carry a strong presumption o f verity" and "constitute a formidable barrier in any subsequent collateral proceedings." B la c k le d g e v. Allison, 431 U.S. 63, 74 (1977); see also United States v. Medlock, 12 F.3d 1 8 5 , 187 (11 th Cir. 1994) ("There is a strong presumption that the statements made during the co llo q u y are true."). Weighing the assertions in Turner's 2255 motion against the record e v id e n c e, including Turner's declarations at the plea hearing and the averments of his trial c o u n se l in counsel's affidavit, this court concludes that Turner fails to demonstrate that his 10 (...continued) THE COURT: And the Court may sentence you to not more than 30 years; do you understand that? THE DEFENDANT: Yes, ma'am. December 1, 2003, Change of Plea Hearing (Doc. No. 20, Gov. Exh. A) at 11-12. 18 g u ilty plea was induced by erroneous assurances by his counsel as to the sentence he would re c eiv e . Therefore, Turner is not entitled to any relief based on this claim of ineffective a s s is ta n c e of counsel. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (in context of guilty p lea s, petitioner alleging ineffective assistance of counsel must establish errors by counsel, in the absence of which, petitioner would not have pled guilty but would have instead insisted on going to trial). d. " C o e r cio n " by Counsel T u rn e r claims that his "will was overborne" and that he was "coerced" by his trial c o u n s e l into entering the second plea agreement. See Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 27. In asserting this claim, however, Turner fails to point to s p e c if ic credible facts demonstrating that his guilty plea was other than knowing and v o lu n ta ry. As noted above, Turner affirmed to the court at the May 14, 2004, plea hearing th a t he had read and discussed the plea agreement with his counsel before signing it, and that h e understood the terms of the agreement. See May 14, 2004, Change of Plea Hearing (Doc. N o . 20, Gov. Exh. C) at 6. In addition, Turner advised the court that he was fully satisfied w ith the representation and advice given to him by his counsel. Id. He also averred that, o th e r than the terms of the plea agreement, no one had made any promises or assurances as to what would happen if he pled guilty and that he was not forced into pleading guilty. Id. a t 7 & 10. C o u n s e l need only provide a defendant who enters a guilty plea with an understanding 19 o f the law in relation to the facts, so that the accused may make an "`informed and conscious c h o ic e .'" Downs-Morgan v. United States, 765 F.2d 1534, 1538 (11 th Cir. 1985) (citations o m itte d ). "To be entitled to collateral relief, the accused must `prove serious derelictions o n the part of counsel sufficient to show that his plea was not, after all, a knowing and in te llig e n t act.'" Id. at 1539. Turner fails to satisfy this standard and has not shown that he w a s coerced by counsel into entering the second plea agreement; consequently, he is not e n titled to any relief based on this claim of ineffective assistance of counsel. 3. F a i lu r e to Prepare for and Investigate Case T u rn e r contends that his trial counsel rendered ineffective assistance by failing to a d e q u a te ly prepare for and investigate his case. See Ground Two of 2255 Motion (Doc. No. 1 ) at 2; Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 30-34. According to Turner, counsel neglected his case because his time and attention were consumed by work o n another prominent case, United States of America v. Richard Scrushy, Case. No. 2 :0 3 c r5 3 0 -K O P -T M P , Northern District of Alabama. Id. Turner maintains that his counsel's p re o c cu p a tio n with the Scrushy case prevented him from pursuing mitigating evidence re g a rd in g Turner's history of childhood sexual abuse and mental illness as well as evidence s u g g e stin g that the victim in the instant case was "prostituting himself" in exchange for m o n e y, alcohol, and computer equipment from Turner. Id. Turner also asserts that his c o u n se l had little contact with him during the course of his representation; that counsel failed to reply to any of his written correspondence; that counsel's phones "were blocked to the 20 E v erc o m Telephone System" when Turner tried to call him while held in the Montgomery C o u n ty Jail; and that after he was transferred to the Elmore County Jail, his calls to counsel's o f f ic e "were not accepted." Id. According to Turner, his wife ultimately contacted the A la b a m a State Bar Association to voice concerns about counsel's lack of communication. Id. Addressing Turner's allegations, his trial counsel states: 6 . As to the argument that I neglected this case for my work on the R ic h a rd Scrushy case in Birmingham, such is not true. That case did not p re v e n t attention to all matters of this case and for carefully examining the e v id e n c e and understanding the different aspects of the case, including a c o m m o n sense approach to the petitioner's decisions. 7 . As to the allegations of not seeing the client or talking to him. This w a s untrue because we did communicate with him and his wife. He is correct th a t his wife did call the State Bar and I did meet with her. I informed her that I was going to withdraw as Kevin Turner's attorney because of the unfounded c o m p l a in t, but she apologized and asked me to stay on the case. I never had a n y other complaints during the trial process. T h is is the first I have heard of any blocked communications with any te le p h o n e system. A ffid a v it of Parkman (Doc. No. 8) at 7. E ls e w h e r e in his affidavit, counsel avers: ... I spent numerous hours talking to Turner's doctors, psychiatrists and c o u n se lo rs as well as going to the jail to try to correct problems of medication an d unstable behavior. N o t only was every tactical decision discussed with my client, but n u m ero u s hours [were] spent discussing this with his wife, Mary Leon Turner. K e v in Turner was aware of all evidence and decisions by me[.] 21 A ffid a v it of Parkman (Doc. No. 8) at 3-4 T u rn e r's allegations do not demonstrate that his counsel failed to adequately prepare f o r and investigate his case. More importantly, Turner fails to establish that he was p re ju d ic e d by counsel's actions in this regard. See Strickland, 466 U.S. at 687-89. T h e re f o re , he is not entitled to relief based on this claim of ineffective assistance of counsel. 4. F a ilu r e to Seek Mental Evaluation T u rn e r contends that his trial counsel rendered ineffective assistance by failing to seek a mental evaluation of him. See Ground Two of 2255 Motion (Doc. No. 1) at 2; M e m o r a n d u m of Law in Support of 2255 Motion (Doc. No. 2) at 46-47. A d d r e ss in g this claim, Turner's counsel states: A s to the argument that I failed to look into Petitioner's medical background, s u c h is not true. Not only did I obtain his medical and treatment records, but I also went to see Dr. Nelson Handal in person. These records were also f o rw a rd e d to the Probation Officer. At sentencing, I had to be careful to state th e true facts about the petitioner's condition. I did not wait to the last minute t o talk to Dr. Handal since the medical record showed that I visited him on D e c em b e r 3, 2003, and made several inquiries about the petitioner's medical a n d mental situation. Dr. Handal made it very clear to me that medication and tre a tm e n t does not prevent Petitioner Turner from seeking out young boys to e n g a g e in sex with. As Dr. Handal noted, Petitioner was convicted of the same a c ts with juvenile boys in 1995 and Petitioner was supposed to be on m e d ic a tio n and treatment when this case occurred with another juvenile male. E v e n Petitioner's counselor, in a telephone interview, could only confirm that P e titio n e r is a pedophile and that he would continue. Such proved to be the c a se when Petitioner attempted a sexual move on an inmate during the p e n d e n c y of this case. While it was brought out that Petitioner did have a b ip o la r diagnosis, such was not indicative of Petitioner being incompetent or th a t the bipolar condition caused the sexual actions or that the petitioner could b e cured through medication or treatment of his homosexual, juvenile te n d e n c i e s. 22 A ffid a v it of Parkman (Doc. No. 8) at 7-8. O n c e again, Turner's cursory allegations about counsel's failure to seek a mental e v a lu a tio n of him, and his completely speculative suggestion that additional mental e v a lu a tio n would have proved beneficial to his case, fail to establish deficient performance b y his counsel or any resulting prejudice. See Strickland, 466 U.S. at 687-89. Therefore, T u rn e r is not entitled to relief based on this claim of ineffective assistance of counsel. 5. F a ilu r e to Mitigate Offense Conduct T u rn e r contends that his trial counsel failed to make sufficient efforts to "mitigate the o f f e n s e conduct at sentencing." See Ground Two of 2255 Motion (Doc. No. 1) at 2; M e m o r a n d u m of Law in Support of 2255 Motion (Doc. No. 2) at 34-42. In this regard, T u rn e r asserts that his counsel (1) failed to vigorously dispute the facts supporting the c h a rg e s against him; (2) failed to "expose the victim ... as an equal aggressor" in the u n d e rlyin g incidents; (3) failed to "mention at sentencing that Turner and the victim actually w o r k e d together in a computer business," a fact that "would have made the victim seem less v u ln e ra b le and been a viable argument in opposition to the 2G2.2 and 5K2.8 enhancements"; (4 ) failed to make effective arguments against application of the U.S.S.G. 2G.2.2 and 5 K 2 .8 sentence enhancements; (5) failed to adequately argue Turner's past efforts at tre a tm e n t and to timely and effectively move for a downward departure on this basis; and (6) fa iled to use Turner's Rule 11 proffer as mitigation. These alleged bases for mitigation are d is c u s s e d in turn below. 23 a. D is p u t in g Facts of Charges T u rn e r makes only the most cursory assertion that his trial counsel failed to vigorously d is p u te the facts supporting the charges against him.1 1 Thus, he fails to plead facts sufficient t o demonstrate that his counsel was deficient in this regard and that he was prejudiced by c o u n s e l' s actions. Strickland, 466 U.S. at 687-89. b. P o r tr a y in g Victim as "Equal Aggressor" and " L e ss Vulnerable" W it h regard to Turner's claims that trial counsel failed to present arguments or e v i d e n c e portraying the victim as "an equal aggressor" and as "less vulnerable" than he se e m e d because he worked with Turner in a computer business,1 2 counsel states in his a f f id a v it: I did not argue that the victim juvenile was an equal aggressor because I did not believe that to be the truth in light of the fact that: a. The petitioner was approximately 38 years old at the time of the beginning of these events and the victim was 17 years of age; That the petitioner has committed these same acts to others and was far wiser; That the petitioner secretly video taped their sex acts; That the petitioner then placed these images on the internet as "blackmail" for the victim to continue the relationship, of which this does not have anything to do b. c. d. 11 See Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 34-35. See Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 35 & 38. 24 12 with the victim being an aggressor. A ffid a v it of Parkman (Doc. No. 8) at 8. Turner presents no persuasive argument or evidence su g g e stin g that counsel could have mitigated his sentence by attempting to paint the victim a s an equal aggressor or "less vulnerable" under the facts as they were known. Thus, his c la im s provide no basis for a finding of ineffectiveness. c. E f fe c tiv e Arguments Against 2G.2.2 and 5 K 2 .8 Enhancements T u rn e r contends that his trial counsel rendered ineffective assistance by failing to a r g u e more effectively against application of the U.S.S.G. 2G.2.2 and 5K2.8 sentence e n h a n c e m e n ts.1 3 The district court determined that a 5-level enhancement pursuant to U .S .S .G . 2G2.2(b)(2) was warranted after finding that Turner had distributed child p o rno g rap h y with the intent to receive a thing of value. In addition, the district court im p o s e d an 8-level upward departure pursuant to U.S.S.G. 5K2.8 after finding that T u rn e r's conduct was extreme and outside the "heartland" of cases. First, the record reflects th a t Turner's counsel did object at sentencing and argue vigorously against application of the 2G.2.2 and 5K2.8 enhancements in Turner's case. See Sentencing Hearing (Doc. No. 20, G o v . Exh. D) at 10-34. Furthermore, the same arguments regarding the inapplicability of th e se enhancements asserted by Turner in his 2255 motion were presented by Turner on d ire c t appeal, where they were found to be nonmertorious by the Eleventh Circuit. See 13 See Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 38-42. 25 U n ite d States v. Turner, 187 Fed.Appx. 927, 928-30 (11 th Cir. 2006) (unpublished). A cc o rdin g ly, this court concludes that Turner has not shown that his trial counsel's p e rf o rm a n c e in this regard was deficient or that he suffered resulting prejudice with respect to this allegation of ineffective assistance of counsel. Strickland, 466 U.S. at 687-89. T h e re f o re , Turner is not entitled to any relief based on this claim. d. P a s t Treatment Efforts as Grounds for D o w n w a r d Departure T u rn e r claims that his trial counsel did not adequately present Turner's past efforts at treatment as a basis for a downward departure.1 4 Notwithstanding this claim, the record ref lects that Turner's counsel did argue at length during the sentencing hearing that the court s h o u ld consider as grounds for downward departure Turner's troubled and abusive u p b rin g in g and his efforts at treatment and rehabilitation for sexual addiction and for sex o f f en s e s he had committed. See Sentencing Hearing (Doc. No. 20, Gov. Exh. D) at 34-42. A fter considering these factors, however, the district court denied the request for a downward d e p a rtu re . Against, Turner presents no persuasive argument or evidence that would likely h a v e resulted in the district court's granting of a downward departure. Therefore, he has not s h o w n that his trial counsel was ineffective in this regard. e. Rule 11 Proffer as Mitigation. T u rn e r also asserts that his trial counsel was ineffective because "he did not use the 14 See Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 35-38. 26 R u le 11 proffer done by Turner as mitigation." 1 5 According to Turner, counsel should have u s e d the proffer "in the face of the government's failure to file a 5K1.8 motion for substantial a s s is ta n c e ." However, there is no evidence in the record of Turner's proffer to the g o v ern m en t, or of the contents of any such proffer. Turner's cursory assertion in this regard is insufficient to demonstrate that counsel was deficient and that he was prejudiced by c o u n se l's actions. For that reason, he is not entitled to relief based on this claim of in e f f e c tiv e assistance of counsel. 6. F a ilu re to Argue Downward Departure Not "Most Likely B a r r e d " by PROTECT Act T u rn e r claims his trial counsel was ineffective at sentencing for failing to dispute the P ro b a tio n Officer's statements to the district court indicating that he believed the PROTECT A c t1 6 probably disallowed Turner's abusive upbringing and efforts at treatment and re h a b ilita tio n as grounds for a downward departure. See Ground Two of 2255 Motion (D o c . No. 1) at 2; Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 43-45. L is tin g only three acceptable exceptions, 5K of the PROTECT Act removed most p o s s ib ilitie s for downward departures for defendants convicted of sexual offenses relating to children. See Pub.L. No. 108-21. Turner contends that the PROTECT Act relied on the m a n d a to ry nature of the Sentencing Guidelines for effect. See Memorandum of Law in 15 See Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 38. The "PROTECT Act" stands for the "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003." 27 16 S u p p o r t of 2255 Motion (Doc. No. 2) at 44. However, he argues that after the Supreme C o u rt's January 2005 decision in United States v. Booker, 543 U.S. 220 (2005), which re n d e re d the Guidelines advisory, the PROTECT Act was rendered "irrelevant." Id. W h i le the Probation Officer did opine to the district court that he thought a downward d e p a rtu re on the grounds urged by Turner's trial counsel "may be prohibited by the g u id e lin e s and maybe by the Protect Act," 1 7 the record does not support the inference that the d istrict court, in denying the requested downward departure, relied on the Probation Officer's stated opinion regarding the applicability of the PROTECT Act or that the district court's ref u sal to depart on the grounds argued by Turner's counsel was based on the court's m is a p p re h e n sio n of the departure provisions or any mistaken belief that the PROTECT Act p re v e n te d the court from considering a downward departure in Turner's case. Nor do the a rg u m e n ts asserted by Turner's counsel at the sentencing hearing suggest that counsel s u b s c rib e d to the view that the PROTECT Act remained mandatory. Under the circu m stan ce s, this court concludes that Turner has not shown that his trial counsel's p e rf o rm a n c e in this regard was deficient or that he suffered resulting prejudice with respect to this allegation of ineffective assistance of counsel. Strickland, 466 U.S. at 687-89. Turner is not entitled to any relief based on this claim. 7. F a ilu re to Cross-Examine Probation Officer Conoly T u rn e r contends that his trial counsel was ineffective for failing to cross-examine 17 See Sentencing Hearing (Doc. No. 20, Gov. Exh. D) at 41. 28 P r o b a tio n Officer David Conoly at the sentencing hearing regarding Conoly's interview of th e victim. See Ground Two of 2255 Motion (Doc. No. 1) at 2; Memorandum of Law in S u p p o r t of 2255 Motion (Doc. No. 2) at 45-46. According to Turner, if cross-examination o f Conoly had occurred, "the victim would have appeared less vulnerable, and the same w o u ld have impacted the 2G2.2 enhancement and 5K2.upward adjustment." Memorandum o f Law in Support of 2255 Motion (Doc. No. 2) at 45. In his affidavits filed with this court, Turner's trial counsel presents convincing rea so n s why attempts to portray the victim as "less vulnerable" or as "an equal aggressor" w o u ld not have been supported by the evidence and would have been ill advised. See, e.g., A ffid a v it of Parkman (Doc. No. 8) at 8. Turner's suggestion that cross-examination of the p r o b a tio n officer who interviewed the victim would have been fruitful for efforts at m itig a tin g Turner's offense is entirely speculative. Because Turner does not establish the lik e ly value of cross-examining Conoly, he fails to show that his counsel was ineffective in th i s regard. The decision as to whether to cross-examine a witness is "a tactical one well w ith in the discretion of a defense attorney." Messer v. Kemp, 760 F.2d 1080, 1090 (11 th Cir. 1 9 8 5 ). Absent a showing that cross-examination of Conoly was reasonably likely to affect th e outcome of the sentencing proceedings, Turner is unable to show prejudice necessary to s a tis f y the second prong of Strickland, 466 U.S. at 687. Consequently, Turner is not entitled to any relief based on this claim. 8. F a ilu r e to Seek Variance 29 T u n e r contends that his counsel was ineffective for failing to request a variance from th e guidelines after the district court concluded its findings denying a downward departure. S e e Ground Two of 2255 Motion (Doc. No. 1) at 2; Memorandum of Law in Support of 2255 Motion (Doc. No. 2) at 46. According to Turner, "[b]ased on the mitigation, a v a ila b le , but not used," [counsel] could have and should have made a credible variance a rg u m e n t. If so, the sentence would have been reduced." Id. T h is court has already rejected each of Turner's claims regarding his trial counsel's alleg ed deficiencies in making efforts to mitigate the offense conduct at sentencing. Turner's c u rso ry assertion that counsel should have made "a credible variance argument" is, like his o th e r allegations of ineffective assistance, insufficient to demonstrate that counsel was d e f icie n t and that he was prejudiced by any of counsel's actions. For that reason, Turner is n o t entitled to any relief based on this claim. C. A c tu a l Innocence T u rn e r makes the assertion that he is actually innocent of the offenses of which he was c o n v ic te d . See Ground Three of 2255 Motion (Doc. No. 1) at 2; Memorandum of Law in S u p p o r t of 2255 Motion (Doc. No. 2) at 47-49. To establish actual innocence, a petitioner m u s t demonstrate that, in light of all the evidence, "`it is more likely than not that no re a so n a b le juror would have convicted him.'" Bousley v. United States, 523 U.S. 614, 623 (1 9 9 8 ), quoting Schlup v. Delo, 513 U.S. 298, 327 (1995). In this regard, "actual innocence" h a s been defined as "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 30 6 2 3 . The Supreme Court in Schlup observed: [ A ] substantial claim that constitutional error has caused the conviction of an in n o c e n t person is extremely rare.... To be credible, such a claim requires [a m o v a n t] to support his allegations of constitutional error with new reliable e v id e n c e whether it be exculpatory scientific evidence, trustworthy e ye w itn e ss accounts, or critical physical evidence that was not presented at trial. 5 1 3 U.S. at 324. T u rn e r presents no facts, other than his own conclusory statements and argument, to su p p o rt his claim of actual innocence. Mere conclusory allegations are insufficient to s u p p o rt a claim of actual innocence. A review of the record reveals that the evidence was s u b s ta n tia l and convincing that Turner was guilty of the charged offenses. Without any e v id e n c e to substantiate Turner's claim of actual innocence, from a factual standpoint, the c o u rt finds that Turner has failed to meet his burden of showing that he is actually innocent, i.e ., that "no reasonable juror would have convicted him." Bousley, 523 U.S. at 623; Schlup, 5 1 3 U.S. at 327. I I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U .S .C . 2255 motion filed by Turner be denied, as the claims therein do not entitle him to a n y relief. It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b e f o re June 9, 2009. A party must specifically identify the findings in the Recommendation 31 to which objection is made; frivolous, conclusive, or general objections will not be c o n sid e re d . Failure to file written objections to the Magistrate Judge's proposed findings and re c o m m e n d a tio n s shall bar a party from a de novo determination by the District Court of is s u e s covered in the Recommendation and shall bar the party from attacking on appeal f a ctu a l findings accepted or adopted by the District Court except upon grounds of plain error o r manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v. R e y n o ld s Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11 th Cir. 1981) (en banc). D o n e this 27 th day of May, 2009. /s/Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 32

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