Turpin v. United States of America (INMATE 3)

Filing 28

ORDER finding that the court concurs with the 27 report and recommendation of the Magistrate Judge; ORDERING as follows: (1) Turpin's 1 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence is GRANTED; (2) The sentence, en tered in United States v. Turpin, No. 3:07-CR-65-WKW (M.D. Ala. 7/1/2008), is VACATED; (3) A resentencing hearing in United States v. Turpin, No. 3:07-CR-65-WKW, is set on 8/29/2018, at 2:00 p.m., in courtroom 2-B of the Frank M. Johnson, Jr. U.S. Co urthouse, in Montgomery, Alabama. Turpin shall remain in custody pending resentencing. The United States Marshal is DIRECTED to arrange for Turpin's appearance at this hearing, and the clerk is directed to provide a court reporter; (4) Unless e ither party objects on or before 8/7/2018, the court will apply the 11/1/2016 version of the guidelines in calculating Turpins new sentence, as further set out in order; (5) the deadlines in Federal Rule of Criminal Procedure 32 are modified to exp edite the resentencing hearing. The United States Probation Office shall prepare an addendum to the PSR, which includes information on Turpin's post-conviction conduct, and shall disclose the addendum to Turpin, his counsel, the Government, a nd the court on or before 8/21/2018, as further set out in order; (6) the clerk is directed to file this Memorandum Opinion and Order, along with the accompanying Final Judgment, in United States v. Turpin, 3:07-CR-065-WKW (M.D. Ala.); (7) The Clerk is DIRECTED to furnish copies of this Order to counsel, to the United States Probation Office, and to the United States Marshal. Signed by Chief Judge William Keith Watkins on 7/31/18. Furnished to calendar group, WR, USM and USPO, as directed.(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
RILEY TURPIN,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

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) CASE NOS. 3:16-CV-480-WKW
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3:07-CR-065-WKW
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[WO]
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ORDER

Before the court is Petitioner Riley Turpin’s 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his 235-month sentence, which was imposed under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See United States v.
Turpin, No. 3:07-CR-065-WKW (M.D. Ala. July 1, 2008) (criminal judgment).
Through counsel, Turpin filed this § 2255 motion — his first — challenging his
designation as an armed career criminal under the ACCA based upon the United
States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).
Turpin argues that, under the Johnson decision, in which the Court held that the
residual clause of the “violent felony” definition in the ACCA is unconstitutional,

he no longer has three prior convictions that qualify as ACCA predicate offenses.1
Turpin seeks resentencing without application of the ACCA.
On June 27, 2018, the Magistrate Judge filed a Recommendation to which no
timely objections have been filed. (Doc. # 27.) Having conducted an independent
review of the record and upon consideration of the Recommendation, the court
concurs with the Magistrate Judge’s Recommendation. Based on the Johnson
decision, Petitioner no longer has three qualifying predicate offenses under the
ACCA. Thus, Turpin’s § 2255 motion is due to be granted, and he is entitled to
resentencing.
Accordingly, it is ORDERED as follows:
(1)

Turpin’s 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence (Doc. # 1) is GRANTED.
(2)

The sentence, entered in United States v. Turpin, No. 3:07-CR-65-

WKW (M.D. Ala. July 1, 2008), is VACATED.
(3)

A resentencing hearing in United States v. Turpin, No. 3:07-CR-65-

WKW, is set on August 29, 2018, at 2:00 p.m., in courtroom 2-B of the Frank M.
Johnson, Jr. U.S. Courthouse, in Montgomery, Alabama. Turpin shall remain in
custody pending resentencing. The United States Marshal is DIRECTED to arrange

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See also Welch v. United States, 136 S. Ct. 1257 (2016), in which the Court held that the
Johnson decision announced a new substantive rule of constitutional law that applies retroactively
to cases on collateral review.
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for Turpin’s appearance at this hearing, and the Clerk of the Court is DIRECTED to
provide a court reporter.
(4)

Unless either party objects on or before August 7, 2018, the court will

apply the November 1, 2016 version of the guidelines in calculating Turpin’s new
sentence. This is the version of the guidelines that will be in effect on the date of
Turpin’s resentencing hearing. See United States v. Robinson, No. 2:07cr312-WKW
(M.D. Ala. Dec. 6, 2016) (Order ruling that, except in limited circumstances, on
resentencing of a successful § 2255 Johnson movant, the court applies the edition of
the Guidelines Manual in effect on the date the defendant is sentenced).
(5)

The deadlines in Federal Rule of Criminal Procedure 32 are modified

to expedite the resentencing hearing. The United States Probation Office shall
prepare an addendum to the PSR, which includes information on Turpin’s postconviction conduct, and shall disclose the addendum to Turpin, his counsel, the
Government, and the court on or before August 21, 2018. Any objections to the
PSR addendum shall be filed under seal no later than seven days after the
addendum’s disclosure.
(6)

The Clerk of the Court is DIRECTED to file this Memorandum Opinion

and Order, along with the accompanying Final Judgment, in United States v. Turpin,
3:07-CR-065-WKW (M.D. Ala.).

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(7)

The Clerk of the Court is DIRECTED to furnish copies of this Order to

counsel, to the United States Probation Office, and to the United States Marshal.
An appropriate judgment will be entered.
DONE this 31st day of July, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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