Turner v. Smith
Filing
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MEMORANDUM OPINION & ORDER: 1. Petitioner Turner's petition 1 is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Henry R. Wilhoit, Jr on 3/28/18.(KSS)cc: COR, Turner (via US mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
WILLIAM H. TURNER,
Petitioner,
v.
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)
)
)
Civil No. 0: 17-122-HRW
)
)
)
)
)
THOMAS SMITH, Warden,
Respondent.
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
Inmate William H. Turner has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [D. E. No. 1] This matter is before the Court
to conduct to initial screening required by 28 U.S.C. § 2243. Alexander v. Northern
Bureau ofPrisons, 419 F. App'x 544, 545 (6th Cir. 2011).
I
In April 2009, a federal grand jury sitting in Sherman, Texas issued an
indictment charging Turner and more than two dozen other defendants for their role
in a large-scale conspiracy to manufacture and traffic in cocaine, methamphetamine,
and marijuana in violation of 21 U.S.C. § 846. On March 10, 2010, a jury found
Turner guilty and that the drug quantity attributable to the overall scope of the
conspiracy was five kilograms or more of cocaine. Based upon the jury's drug
quantity finding, Turner faced a mm1mum 10-year pnson term.
21 U.S.C.
§ 84l(b)(l)(A).
The presentence report concluded that 60.5 kilograms of cocame was
attributable to Turner for his participation in the conspiracy. Turner objected to this
amount during the sentencing hearing based upon the asserted unreliability of the
testimony given by his co-conspirators [see D. E. No. 1-7 at 2-3], but that objection
was overruled by the trial court based upon the evidence adduced at trial from
testifying co-conspirators. At the conclusion of the October 24, 2010, hearing, the
trial court imposed a 235-month sentence. United States v. Turner, No. 4: 09-CR48-ALM-KPJ-13 (E.D. Tex. 2009).
Turner raised numerous issues on direct appeal, among them a challenge to
the trial court's conclusions regarding drug quantity for sentencing purposes. The
Fifth Circuit rejected that and Turner's other claims, affirming in April 2012. United
States v. Turner, No. 10-41146 (5th Cir. 2010).
In February 2013, Turner filed a motion to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255 on numerous grounds, but the primary focus was the
asserted ineffectiveness of his counsel. In a supplemental memorandum filed in July
2013, Turner asserted an entirely-new claim: that the imposition of a sentence based
upon drug quantity findings made by the court, not the jury, was contrary to the
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Supreme Court's then-recent decision in Alleyne v. United States, 570 U.S. 99
(2013).
The trial court denied that motion in March 2016. In doing so, it indicated
that Turner's claim was, in actuality, based upon the Supreme Court's 16-year-old
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which had held that
"[ o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." Id. at 490. While Turner purported to rely upon
Alleyne, that decision had merely extended the principle of Apprendi to facts that
increased a mandatory minimum sentence, Alleyne, 570 U.S. at 107-09, something
that did not occur during Turner's prosecution and sentencing. The trial court noted
that neither Apprendi nor Alleyne applied retroactively on collateral review, and
denied the motion. Turner sought a certificate of appealability solely upon his
Alleyne claim, which the Fifth Circuit denied in November 2016. Turner v. United
States, No. 4: 13-CV-65-ALM (E.D. Tex. 2013).
In an extensive memorandum filed in support of his petition, Turner argues
that ( 1) resort to relief under Section 2241 pursuant to the "savings clause" of Section
2255(e) is (or ought to be) available under a far broader set of circumstances than
current precedent permits [D. E. No. 1-1 at 9-11], and (2) the Fifth and Sixth
Amendments to the United States Constitution require that a jury, not the court,
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establish the drug quantity attributable to a defendant beyond a reasonable doubt in
all circumstances. [D. E. No. 1-1at5-9, 12-14]
Turner, through his memorandum, has made an admirable attempt to navigate
this byzantine area of the law, but his arguments are wide of the mark. First, this
Court is bound to follow controlling precedent from the Sixth Circuit Court of
Appeals governing the permissible scope of the savings clause. To properly invoke
the savings clause and seek relief under § 2241, Turner - who challenges not his
conviction but the sentence imposed - must show that ( 1) his sentence was imposed
when the Sentencing Guidelines were mandatory before the Supreme Court's
decision in United States v. Booker, 543 U.S. 220 (2005); (2) he was foreclosed from
asserting his present claim in a successive petition under § 2255; and (3) after his
sentence became final, the Supreme Court issued a retroactively applicable decision
establishing that - as a matter of statutory interpretation - a prior conviction used to
enhance his federal sentence no longer qualified as a valid predicate offense. Hill v.
Masters, 836 F. 3d 591, 599-600 (6th Cir. 2016).
Turner fails to satisfy these criteria. First, Turner was sentenced in 2010 under
the Guidelines to a 235-month prison term. This sentence was governed by the
Guidelines, and it was imposed five years after Booker rendered those Guidelines
advisory rather than mandatory. Second, nearly all of the decisions upon which
Turner relies were decided well before his sentence was imposed, not after, and he
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was therefore obligated to assert them as a ground for relief on direct appeal or in an
initial motion for relief under Section 2255. Finally, although Turner does not
expressly invoke Apprendi in his memorandum, it is that decision and its progeny
upon which his claim ultimately rests. But that decision was decided well before
Turner was sentenced, not after his conviction became final.
Even if Turner could assert his Apprendi I Alleyne claim in this proceeding, it
is without merit. Turner's reliance upon these cases is misplaced because in his case,
the jury found him guilty beyond a reasonable doubt of conspiring to traffic in five
or more kilograms of cocaine. That finding, by a jury, was sufficient under Alleyne
to render Turner subject to the mandatory minimum 10-year sentence established by
21 U.S.C. § 841(b)(l)(A). Alleyne, 570 U.S. at 107. The 235-month sentence
actually imposed was more than that 10-year minimum but less than the maximum
of life imprisonment authorized by § 841(b)(l)(A).
The Constitution does not
require that every fact used to decide upon a sentence within that broad range must
be found by a jury beyond a reasonable doubt. United States v. Johnson, 732 F. 3d
577, 584 (6th Cir. 2013) ("Alleyne did not extend Apprendi to facts that do not
increase the prescribed statutory penalties").
This is plain from United States v. Booker, 543 U.S. 220, 233 (2005), which
noted that a judge's "selection of particular sentences in response to differing sets of
facts [does] not implicate the Sixth Amendment. We have never doubted the
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authority of a judge to exercise broad discretion in imposing a sentence within a
statutory range." As the Fourth Circuit has aptly explained:
Since Apprendi v. New Jersey, drug quantities that increase the
statutory maximum sentence are elements of the offense and thus must
be charged in the indictment and submitted to the jury for proof beyond
a reasonable doubt. See 530 U.S. 466, 490, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000). While Apprendi affects the calculation of the
statutory maximum sentence that may be imposed, it does not affect the
calculation of the applicable sentencing guideline range. "Sentencing
judges may find facts relevant to determining a Guidelines range by a
preponderance of the evidence, so long as that Guidelines sentence is
treated as advisory and falls within the statutory maximum authorized
by the jury's verdict." United States v. Benkahla, 530 F.3d 300, 312
(4th Cir. 2008), cert. denied, _U.S. _, 129 S.Ct. 950, 173 L.Ed.2d
146 (2009); see also United States v. Perry, 560 F.3d 246, 258 (4th Cir.
2009) (holding that, after United States v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005), district courts may "continue to
make factual findings concerning sentencing factors ... by a
preponderance of the evidence" and consider acquitted conduct when
applying the guidelines in an advisory fashion). As long as the sentence
imposed does not exceed the maximum sentence authorized by the
jury's verdict, the district court does not violate the Sixth Amendment
by imposing a sentence based on a higher drug quantity than was
determined by the jury. See United States v. Webb, 545 F.3d 673, 677
(8th Cir. 2008).
United States v. lzegwire, 371 F. App'x 369, 374 (4th Cir. 2010). See also Romero
v. Warden Florence FCI, 550 F. App'x 72, 74 (3d Cir. 2014) ("Alleyne involved
mandatory statutory minimum sentences, not routine calculations under the
Sentencing Guidelines of the kind that Romero has repeatedly sought to
challenge."); Hames v. Sepanek, No. 0:13-111-HRW (E.D. Ky. Sept.17, 2013).
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Because the 235-month guidelines sentence imposed was substantially less
than the statutory maximum sentence authorized by the jury's finding, Turner's
rights under the Sixth Amendment were not violated, and his petition must be
denied. Booker, 543 U.S. at 233; Johnson, 732 F. 3d at 584.
Accordingly, it is hereby ORDERED as follows:
1.
Petitioner William H. Turner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [D. E. No. 1] is DENIED.
2.
This action is DISMISSED and STRICKEN from the Court's docket.
3.
Judgment shall be entered contemporaneously with this Memorandum
Opinion and Order.
This
JB't;;; of March, 2018.
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