TURNER v. USA

Filing 7

Entry Denying Motion for Relief Pursuant to 28 U.S.C. Sec. 2255 and Denying Certificate of Appealability - For the reasons explained in this Entry, Turner is not entitled to relief in this action. Accordingly, her motion for relief pursuant to S ec. 2255 is denied, and this action must be dismissed with prejudice. Judgment consistent with this Entry shall now issue. A copy of this Entry and of the accompanying Judgment shall be entered in the underlying criminal action, Case No. 2:10-cr-18-JMS-CMM-7. In addition, the court finds that a certificate of appealability should not issue. (See Entry.) Copies distributed pursuant to distribution list. Signed by Judge Jane Magnus-Stinson on 10/30/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISOIN

BRANDI TURNER,
Movant,
vs.
UNITED STATES OF AMERICA.

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Case No. 2:13-cv-239-JMS-WGH
Case No. 2:10-cr-18-JMS-CMM-07

Entry Denying Motion for Relief Pursuant to
28 U.S.C. ' 2255 and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Brandi Turner (“Turner”) for relief
pursuant to 28 U.S.C. ' 2255 must be denied and this action dismissed with prejudice. In
addition, the court finds that a certificate of appealability should not issue.
I. The ' 2255 Motion
Background
On August 8, 2010, Turner was charged in a nine-count, multi-defendant, Indictment for
drug related offenses. On May 3, 2011, Turner filed a Petition to Enter a Plea of Guilty. A Plea
Agreement pursuant to Federal Rules of Criminal Procedure 11(c)(1)(B) was filed. [Crim. Dkt.
Nos. 89 and 90.] The Plea Agreement provided that Turner would plead guilty to Count One and
Two as charged in the Indictment. Turner also “expressly waive[d] her right to appeal the
conviction and any sentence imposed on any ground, . . . [and] also expressly agree[d] not to
contest, or seek to modify, her conviction or her sentence or the manner in which it was
determined in any proceeding, including but not limited to, an action brought under 28 U.S.C. §
2255.” [Plea Agreement, Crim. Dkt. 90 at ¶ 10.] In exchange for Turner’s plea of guilty, the
Government agreed to recommend a sentence at the minimum of the applicable sentencing
guideline range.

On June 1, 2011, a plea hearing was held and the Court accepted Turner’s plea and
adjudged her guilty of Counts 1 and 2 as charged in the Indictment. [Docket No. 115.]
On August 12, 2011, the Court held a sentencing hearing. The Court sentenced Turner to
60 months in prison, to be followed by three years of supervised release. [Docket No. 163.]
Turner was also assessed the mandatory assessment of $200. The judgment of conviction was
entered on August 16, 2011. Turner did not appeal her conviction or her sentence.
On June 21, 2013, Turner filed what this Court considered to be a motion for relief
pursuant to 28 U.S.C. § 2255. [See Crim. Docket Nos. 222-25.]
Discussion
Turner’s § 2255 motion suggests that she is entitled to relief based on the Supreme
Court’s ruling in Dorsey v. United States, 132 S.Ct. 2321, 2323 (2012).1 Specifically she seeks a
reduced sentence so that she can care for her young children and because of her demonstrated
efforts to better herself while in prison. In addition to other defenses, the United States argues
that Turner is not entitled to relief because her ' 2255 motion is time-barred.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a
one-year statute of limitations period for § 2255 motions. 28 U.S.C. § 2255(f). For purposes of
§ 2255(f)(1), that period runs from “the date on which the judgment of conviction becomes
final.” Id. Turner did not appeal her conviction or her sentence, thus her conviction became final
August 30, 2011. Clay v. United States, 537 U.S. 522, 532 (2003); 28 U.S.C. § 2255(f)(1). The
last day on which Turner could have filed a timely § 2255 motion was August 30, 2012. Turner’s
motion is untimely by almost a year.
1

“Dorsey holds that persons sentenced on or after August 3, 2010, receive the benefit of the
lower minimum and maximum sentences specified in the Fair Sentencing Act of 2010.” U.S. v.
Foster, 706 F.3d 887, 888 (7th Cir. 2013). Dorsey’s holding, however, could have no impact on
Turner’s sentence. As discussed above, Turner was charged and sentenced after the Fair
Sentencing Act of 2010 became effective.

Turner did not reply to the Government’s argument and there is no basis upon which the
Court could conclude that equitable tolling is appropriate in this case. Accordingly, Turner’s §
2255 motion is time-barred and summarily dismissed with prejudice on this basis.
Conclusion
For the reasons explained above, Turner is not entitled to relief in this action.
Accordingly, her motion for relief pursuant to ' 2255 is denied, and this action must be
dismissed with prejudice. Judgment consistent with this Entry shall now issue. A copy of this
Entry and of the accompanying Judgment shall be entered in the underlying criminal action,
Case No. 2:10-cr-18-JMS-CMM-7.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Turner has failed
to show that reasonable jurists would find “it debatable whether the petition states a valid claim
of the denial of a constitutional right” or “debatable whether [this court] was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a
certificate of appealability.
IT IS SO ORDERED.

10/30/2013
Date: __________________

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
Brandi Turner
09806-028
B4 – Federal Prison Camp
Alderson, WV 24910
Office of the United States Attorney
10 West Market Street Suite 2100
Indianapolis, IN 46204-3048