United States District Court, E.D. Missouri, Southeastern Division
COREY E. TURNER, SR., Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Movant Corey Turner, Sr.'s
motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. (Doc. No.
1). The Government filed a Response (Doc. No. 6), and Movant
filed a Reply (Doc. No. 7). Movant also filed several
supplemental memoranda in support of his motion. (Doc. Nos.
17, 23, 26, 30). The matter is, therefore, ready for
August 8, 2011, a Grand Jury in the Eastern District of
Missouri, Southeastern Division, returned a 21-count
indictment against Movant and multiple other defendants,
charging them with various violations related to the
distribution of, or possession with intent to distribute,
cocaine base, including conspiracy. Movant and two other
co-defendants stood trial on April 8, 2013. The jury returned
its verdict on April 12, 2013, finding each defendant guilty
of all pending charges.
Presentence Investigation Report ("PSR") was
prepared by the United States Probation Office. In
Movant's PSR, the base offense level was 38 pursuant to
U.S.S.G. § 2D1.1(c)(1), as the offense involved more
than 8.4 kilograms of cocaine base. The recommendation
contained in the PSR was a four-level enhancement for Movant
for being a leader, organizer, or manager of a criminal
activity with more than five participants and a two-level
enhancement for obstructing justice. These enhancements raised
his total offense level to 44, but that level was reduced to
43-the maximum total offense level.
11, 2013, the Court conducted a sentencing hearing for
Movant. The Court adopted a total offense level of 43 and a
criminal history category of V, yielding a guideline range of
life imprisonment on Count I, which is the subject of this
filed a direct appeal, and the Eighth Circuit affirmed
Movant's sentence on March 18, 2015. United States v.
Turner, 781 F.3d 374 (8th Cir. 2015). His request for
rehearing en banc was denied on May 29, 2015, and his request
for certiorari review by the United States Supreme Court was
alleges eight grounds for relief, all based on ineffective
assistance of trial counsel, as follows: (1) counsel did not
challenge the sufficiency of the Grand Jury indictment for
Count I; (2) counsel did not object to the Government's
failure to charge facts essential to his punishment, thereby
violating Movant's Fifth Amendment right to prepare a
defense; (3) counsel failed to challenge the district
court's imposition of a life sentence based on prior
convictions without such a factual finding by a jury, in
violation of Alleyne v. United States, 570 U.S. 99,
117 (2013); (4) counsel did not request that the jury make
specific factual findings as to the amount of cocaine
involved in his conspiracy for sentencing purposes; (5)
counsel did not object at the sentencing hearing when the
Court failed to make an individualized finding as to
Movant's drug quantity for relevant conduct; (6) counsel
was ineffective for failing to object to the Court's lack
of jurisdiction to impose a sentence based on drug quantity
without an individualized finding that the mandatory minimum
drug quantity "triggering amount" was attributable
to Movant; (7) counsel did not argue that the Court was
without jurisdiction and was violating Separation of Powers
principles when it issued an order allowing Movant's cell
phone to be tracked; and (8) counsel did not call
co-defendants as witnesses at Movant's trial.
Standard of Review
to 28 U.S.C. § 2255, a federal prisoner may seek habeas
relief "upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack." 28 U.S.C. § 2255(a). In order to obtain
relief under § 2255, a movant must establish a
constitutional or federal statutory violation constituting
"a fundamental defect which inherently results in a
complete miscarriage of justice." United States v.
Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting
United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th
criminal defendant has a Sixth Amendment right to the
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To succeed on his
ineffective assistance of counsel claims, Movant must
demonstrate (1) that his counsel's performance "fell
below an objective standard of reasonableness, " and (2)
"that the deficient performance prejudiced the
defense." See Id . at 687-91. In measuring
counsel's performance, courts apply "a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance."
Id. (citation omitted).
prove the second prong of an ineffective assistance of
counsel claim, there must exist "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Id. at 687, 690, 694. Consequently,
counsel is not ineffective for failing to file a motion or
make an objection that would not have succeeded because the
petitioner was not actually prejudiced. Williams v.
United States, No. 4:15-CV-01651-AGF, 2019 WL 330469, at
*1 (E.D. Mo. Jan. 25, 2019)) (citing United States v.
Johnson, 707 F.2d 317, 323 (8th Cir. 1983)).
Deficiencies in the Indictment (Claims 1 and 2)
alleges that Count I of the superseding indictment was
defective because it did not include the essential element
that Movant "knowingly or intentionally joined" an
existing conspiracy. Movant focuses his challenge on the
absence of the word "join" in the superseding
indictment, arguing that as a result, Movant was not put on
notice of the charges and prevented him from mounting an
effective defense. Specifically, Movant intended to introduce
evidence that he was incarcerated from September 2009 until
August 2010, and therefore could not have been involved in
the formation of a conspiracy. Movant also contends that the
Government presented evidence of eighteen drug transactions,
which the Government argued formed the basis of Movant's
conspiracy charge. He asserts that because these transactions
were not charged in the superseding indictment or referenced
in the conspiracy count, they fell outside the scope of the
Rule of Criminal Procedure 7(c)(1) requires that an
indictment be a "plain, concise, and definite written
statement of the essential facts constituting the offense
charged." "An indictment is sufficient 'if it
contains all of the essential elements of the offense
charged, fairly informs the defendant of the charges against
which he must defend, and alleges sufficient information to
allow a defendant to plead a conviction or acquittal as a bar
to a subsequent prosecution."' United States v.
Summers, 137 F.3d 597, 601 (8th Cir. 1998) (quoting
United States v. Wessels, 12 F.3d 746, 750
(8th Cir. 1993)). Further, an indictment is normally deemed
sufficient if its language tracks the statutory language.
Hamling v. United States, 418 U.S. 87, 117(1974).
the outset, the Court notes that "[i]t is a rare event
that the validity or sufficiency of an information is subject
to collateral attack on a § 2255 motion."
United States v. Young, No. 94-108-CR-FTM-24D, 1997
WL 394903, at *9 (M.D. Fla. June 16, 1997) (citing Roth
v. UnitedStates,295 F.2d 364, 365 (8th Cir.
1961). Nevertheless, the Court concludes that ...