Turnage, John v. Williams II, Louis

Filing 7

ORDER denying petitioner John Turnage's 6 motion to alter or amend the judgment. Signed by District Judge James D. Peterson on 6/13/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN TURNAGE,
Petitioner,
v.

ORDER
17-cv-296-jdp

LOUIS WILLIAMS, II,
Respondent.

Pro se petitioner John Turnage filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 challenging his sentence. Dkt. 3. He argued that in light of Mathis v. United States, 136
S. Ct. 2243 (2016), the sentencing court erroneously found that his prior Minnesota conviction
of second-degree assault qualified as a crime of violence under the U.S. Sentencing Guidelines
§ 4B1.1. I denied the petition and dismissed the case after concluding that Turnage plainly
could not demonstrate that there was any error in his sentencing, because a Minnesota
conviction for second-degree assault still qualifies as a violent crime under the Mathis approach.
Dkt. 4. Turnage now moves to alter or amend the judgment under Federal Rule of Civil
Procedure 59(e). Dkt. 6.
To prevail on a motion for reconsideration under Rule 59, a petitioner must present
newly discovered material evidence or establish a manifest error of law or fact. Oto v. Metro. Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Here, Turnage contends that I erred in denying
his petition because I failed to recognize United States v. Headbird, 832 F.3d 844 (8th Cir.
2016), as controlling precedent. A failure to recognize controlling precedent is a manifest error
of law, it’s true. See Oto, 224 F.3d at 606. But Headbird is not controlling precedent. This court
is bound to follow the precedent of the Seventh Circuit. Although courts within the Seventh

Circuit “carefully and respectfully consider the opinions of our sister circuits, we are not bound
by them.” United States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008) (quoting United States v.
Williams, 184 F.3d 666, 671 (7th Cir. 1999)). Headbird was decided by the Eighth Circuit, so
it is merely persuasive authority, and I am not bound to follow it.
Even if failure to recognize persuasive authority were a manifest error, Headbird supports
my conclusion that Turnage has not identified an error in his sentencing. In Headbird, the
Eighth Circuit held that a Minnesota second-degree assault conviction “is a violent felony”
under the Armed Career Criminal Act’s force clause. 832 F.3d at 847. The ACCA’s force clause
is identical to the Guidelines’ force clause, so under Headbird’s reasoning, Turnage’s conviction
for second-degree assault qualifies as a violent crime. Turnage argues that Headbird held that
second-degree assault in Minnesota “does not qualify as a predicate offense.” Dkt. 6, at 2.
Turnage misreads Headbird. The Eighth Circuit held that a juvenile adjudication under
Minnesota’s second-degree assault statute does not qualify as a predicate offense, because
“Minnesota’s definition of ‘dangerous weapon’ is broader than the ACCA’s requirement that a
juvenile adjudication ‘involv[e] the use or carrying of a firearm, knife, or destructive device.’”
832 F.3d at 849 (quoting 18 U.S.C. § 924(e)(2)(B)). This holding does not apply to Turnage’s
case because he was convicted of second-degree assault as an adult, not a juvenile. And unlike
the ACCA, § 4B1.2 of the Guidelines allows only adult convictions to qualify as a predicate
offense. See § 4B1.2(a) & cmt. 1; United States v. Otero, 495 F.3d 393, 401 (7th Cir. 2007). So
the ACCA’s requirement for juvenile adjudications could not have entered into the sentencing
court’s analysis in Turnage’s case.
I stand on my previous analysis. Therefore, I will deny Turnage’s motion.

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ORDER
IT IS ORDERED that petitioner John Turnage’s motion to alter or amend the
judgment, Dkt. 6, is DENIED.
Entered June 13, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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