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Turner v. United States

United States District Court, E.D. Missouri, Southeastern Division

September 25, 2019

COREY E. TURNER, SR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.

         This 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 disposition.

         I. Background[1]

         On 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.

         A 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.[2] These enhancements raised his total offense level to 44, but that level was reduced to 43-the maximum total offense level.

         On July 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 habeas petition.

         Movant 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 also denied.

         Movant 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.

         II. Standard of Review

         Pursuant 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 Cir. 1989)).

         A 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).

         To 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)).

         III. Discussion[3]

         A. Deficiencies in the Indictment (Claims 1 and 2)

         Movant 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 charge.

         Federal 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).

         From 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 ...


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