Turner v. Kreuger
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 4/18/2017. Petitioners Motion for Leave to Appeal in forma pauperis 16 is DENIED. Petitioners Motion to Show Good Faith 17 is DISMISSED AS MOOT. Pursuant to Federal Rule of Appellate Procedure 24(a)(4) the Clerk is ordered to immediately notify the parties and the Seventh Circuit Court of Appeals that this Court has denied Petitioners motion and has certified that the appeal is not taken in good faith because it is without merit.(RK, ilcd)
E-FILED
Tuesday, 18 April, 2017 11:49:33 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
LAWRENCE TERRELL TURNER,
Petitioner,
v.
J.E. KREUGER, Warden
Respondent.
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Case No. 1:17-cv-1081-JBM
ORDER & OPINION
This matter is before the Court on Petitioner Lawrence Turner’s Motion for
Leave to Appeal in forma pauperis. (Doc. 16). For the reasons that follow, Petitioner’s
motion is denied.
BACKGROUND
On March 10, 2005, Petitioner pled guilty to conspiracy to distribute cocaine
and cocaine base. See Plea Agreement, United States v. Turner, No. 2:05-cr-00011RTR-1 (E.D. Wis. Mar. 10, 2005). The Government sought a sentence enhancement
for a prior conviction for a felony drug offense pursuant to 21 U.S.C. §§ 841(b)(1)(A)
and 851(a). See Information to Establish Prior Conviction, United States v. Turner,
No. 2:05-cr-00011-RTR-1. The previous conviction was a 1993 conviction for
possession of cocaine base with intent to deliver, in violation of Wisconsin Statute §
161.41(1m)(cm).1 See Information to Establish Prior Conviction, United States v.
The Court notes that the Information to Establish Prior Conviction form does not
state the Wisconsin Statute, but rather states only that Petitioner was convicted of
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Turner, No. 2:05-cr-00011-RTR-1; (Doc. 1 at 12). The plea agreement acknowledged
that Petitioner was subject to a mandatory minimum punishment of twenty (20)
years of incarceration and a maximum punishment of life imprisonment with the
sentence enhancement under 21 U.S.C. § 851. Id. On November 9, 2006, Petitioner
was sentenced to 270 months of incarceration. See Judgment, United States v. Turner,
No. 2:05-cr-00011-RTR-1.
On February 17, 2017, Petitioner filed his Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. Petitioner argued that his predicate conviction no
longer served as “controlled substance offense” under Hinkle v. United States, 832
F.3d 569 (5th Cir. 2016). (Doc. 1 at 1). On March 3, 2017, the Court denied Petitioner’s
§ 2241 Petition because he could not meet the requirements to invoke the Savings
Clause under 28 U.S.C. § 2255 in order to be able to file a § 2241 Petition. (Doc. 2 at
5). Furthermore, the Court found that even if Petitioner had met the requirements,
Petitioner’s argument would fail on its merits because Petitioner’s sentence
enhancement under 21 U.S.C. § 841 was predicated on a prior “felony drug offense,”
not a “controlled substance offense.” (Doc. 2 at 5).
On March 13, 2017, Petitioner filed a “Motion for Reconsideration,” which is
actually a Motion to Alter or Amend a Judgment pursuant to Federal Rule of Civil
“Possession of Cocaine Base with Intent to Deliver.” The Court notes that possession
of cocaine base with intent to deliver was a violation of Wisconsin Statute §
161.41(1m)(cm). (1994); see, e.g., State v. Porter, 532 N.W.2d 145 (Wis. Ct. App. 1995)
(“possession of cocaine base with intent to deliver, contrary to § 161.41(1m)(cm)”);
State v. Jackson, 525 N.W.2d 165, 166 (Wis. Ct. App. 1994) (“possession of cocaine
base with intent to deliver, contrary to § 161.41(1m)(cm)1.”). The Court also that
Petitioner states his conviction was in violation of Wisconsin Statute § 161.14;
however, the Court notes that Wisconsin Statute § 161.14 is the statute defining
Schedule I substances and is therefore the incorrect statute.
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Procedure 59(e). (Doc. 5). Petitioner argued that he was making a claim under Mathis
v. United States, 136 S. Ct. 2243 (2016); therefore, he argued that he meets the
requirements to invoke the Savings Clause. (Doc. 5 at 1). Petitioner also argued that
the § 841 sentence enhancement does not define “felony drug offense;” therefore the
Court should adopt the definition of “controlled substance offense” and find that
Petitioner’s predicate act does not meet that definition under Mathis and Hinkle.
(Doc. 5 at 3-4).
On March 17, 2017, the Court denied Petitioner’s Motion to Alter or Amend
Judgment under Rule 59(e). (Doc. 9). The Court found that Petitioner still failed to
meet the requirements to invoke the Savings Clause under 28 U.S.C. § 2255 in order
to be able to file a § 2241 Petition. (Doc. 9 at 2). Furthermore, the Court found that
Petitioner’s predicate offense met the definition of a “felony drug offense” and that
Mathis and Hinkle were inapplicable. (Doc. 9 at 4).
On March 13, 2017, Petitioner filed a Notice of Appeal as to the Court’s denial
of his § 2241 Petition. (Doc. 5). On March 27, 2017, Petitioner filed a Notice of Appeal
as to the Court’s denial of Petitioner’s Rule 59(e) Motion to Alter or Amend Judgment.
(Doc. 10). On April 6, 2017, Petitioner filed a Motion for Leave to Appeal in forma
pauperis. (Doc. 16). On appeal, Petitioner asserts, without providing any legal
support, that the definition for “felony drug offense” is overly broad and “must
certainly violate a defendant’s constitutional rights.” (Doc. 17 at 1).
LEGAL STANDARDS
Under 28 U.S.C. § 1915(a), an indigent prison litigant may pursue an appeal
by filing an affidavit that includes a statement of all assets such prisoner possesses,
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and affirms that the prisoner is unable to pay court fees or provide security therefor.
The affidavit must also state the nature of the appeal and the affiant’s belief that he
is entitled to redress. The prisoner must also submit a certified copy of his trust fund
account statement (or institutional equivalent) for the six month period immediately
preceding the filing of the complaint or notice of appeal, obtained from the
appropriate official of each prison at which the prisoner is or was confined.
In order to grant a motion for leave to appeal in forma pauperis, the court must
find both that the petitioner does not have the means to pay the filing fee for his
appeal and that his appeal is taken in good faith. Section 1915(a)(3) explicitly
provides an “appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” An appeal is taken in good faith if “a
reasonable person could suppose that the appeal has some merit.” Walker v. O’Brien,
216 F.3d 626, 632 (7th Cir. 2000).
DISCUSSION
Although the Court finds that Petitioner would be unable to afford the filing
fee, the Court denies Petitioner’s Motion for Leave to Appeal in forma pauperis
because it is not taken in good faith. Petitioner’s argument on appeal is that the
sentencing enhancement under 21 U.S.C. § 841 is overly broad. However, Petitioner
provides no legal support for that assertion. Without some legal support, the Court
finds that no reasonable person could suppose that Petitioner’s argument has merit.
Furthermore, if Petitioner relies on his assertions that his predicate offense is
not a “felony drug offense,” the Court finds Petitioner is similarly without a
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meritorious appeal. As the Court explained in its March 3rd and March 17th Orders,
Petitioner’s argument fails both procedurally and substantively. (Docs. 2 & 9).
Because no reasonable person could suppose that Petitioner’s appeal has some
merit, the Court concludes that Petitioner’s appeal is not taken in good faith. See
Walker, 216 F.3d at 632. Because Petitioner’s appeal is not taken in good faith, the
Court denies Petitioner’s Motion for Leave to Appeal in forma pauperis. Under
Federal Rule of Appellate Procedure 24, Petitioner has thirty (30) days from the date
of this order in which to ask the United States Court of Appeals for the Seventh
Circuit to review this court’s denial of leave to proceed in forma pauperis on appeal
or to pay the appellate filing and docketing fee of $505 to the Clerk of Court in this
District.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion for Leave to Appeal in forma
pauperis (Doc. 16) is DENIED. Petitioner’s Motion to Show Good Faith (Doc. 17) is
DISMISSED AS MOOT. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)
the Clerk is ordered to immediately notify the parties and the Seventh Circuit Court
of Appeals that this Court has denied Petitioner’s motion and has certified that the
appeal is not taken in good faith because it is without merit.
Entered this __18th__ day of April, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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