Turner v. USA

Filing 23

MEMORANDUM AND ORDER re: 16 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Samuel T Turner, 6 First MOTION to Supplement 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Samuel T Turner , 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Samuel T Turner..Because Turner had been convicted of prior violent felonies, he was properly sentenced as an armed career criminal. His motion is denied.. Signed by District Judge Stephen N. Limbaugh, Jr on 4/14/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
SAMUEL T. TURNER,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:16CV00153 SNLJ

MEMORANDUM AND ORDER
This case is before the Court on petitioner Turner’s Amended Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, which is based on his claim that
he should not have been sentenced as an armed career criminal.
As noted by the Government and Turner, three prior convictions for violent
felonies and/or serious drug offenses are required to permit a defendant to be classified as
an Armed Career Criminal. In Turner’s Amended Petition, he agrees that two of his prior
felony convictions qualify as Armed Career Criminal Act (“ACCA”) predicates: (1) his
conviction in 2002 for Missouri Second Degree Assault (Resentencing PSR ¶ 41), and his
conviction in 2007 for Missouri Second Degree Assault (Resentencing PSR ¶ 43). (See
Turner’s Amended Motion, p. 7, “Under Fogg and Johnson, only the Petitioner’s two
Missouri convictions for assault in the second degree from Dunklin and St. Francois
counties qualify as ACCA predicates.”).
The only question presented by this case, then, is whether Turner’s conviction for
Indiana Recklessness (Resentencing PSR ¶32) was properly classified as a violent felony

in the PSR. Turner’s theory is that the state statute of conviction for his crime did not
require a sufficient degree of force to qualify as an “elements” clause violent felony
because the conviction was based on a mens rea of “recklessness.” In his brief, Turner
now “admits that his argument is foreclosed by the Eighth Circuit’s recent decision in
United States v. Fogg, 836 F.3d 951 (8th Cir. 2016),” which held that reckless conduct
does constitute a “use” of force under the ACCA.
Because Turner had been convicted of these prior violent felonies, he was properly
sentenced as an armed career criminal. His motion is denied.
SO ORDERED this 14th day of April, 2017.

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STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE