Turner v. United States

ROBERT T. TURNER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil No. 20-cv-50-JPG

Criminal No 17-cr-40035-JPG

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

June 21, 2021

MEMORANDUM AND ORDER

This matter comes before the Court on petitioner Robert T. Turner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).

I. Background

On June 6, 2017, a grand jury indicted Turner on two counts of distribution of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(C)—Count 1 on or about March 17, 2017, and Count 2 on or about April 5, 2017—and one count of possession with intent to distribute 50 grams or more of methamphetamine in the form of ice or 500 grams or more of a mixture and substance containing methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(A)—Count 3. An arrest warrant was issued that same day based on the return of the indictment, and a writ of habeas corpus ad prosequendum was issued the following day to obtain Turner's presence from the Lawrence County Jail at his June 21, 2017, initial appearance and arraignment. He was being held at the jail at that time on related state charges. On September 7, 2017, the Government filed an information under 21 U.S.C. § 851 alleging one prior Illinois felony drug conviction—possession of a controlled substance. On October 19, 2017, Turner pled guilty to all three counts without a plea agreement. Prior to accepting the plea, the Court conducted a plea colloquy that substantially complied with Federal Rule of Criminal Procedure 11.

The Court held a sentencing hearing on February 6, 2018, at which it found Turner to be a career offender based on two prior felony drug convictions and sentenced him to serve 264 months in prison on each count, all to run concurrently. Turner appealed his conviction to the United States Court of Appeals for the Seventh Circuit. In that proceeding, he indicated he did not wish to withdraw his guilty plea. On November 14, 2018, the Court of Appeals dismissed the appeal after allowing counsel to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). See United States v. Turner, 742 F. App'x 145 (7th Cir. 2018). Turner did not seek a writ of certiorari from the Supreme Court.

II. § 2255 Motion

In his timely § 2255 motion, the petitioner makes the following arguments:¹

Ground 1: His trial level counsel, Assistant Federal Public Defender Judith Kuenneke, was constitutionally ineffective in violation of his Sixth Amendment rights because she failed:

a. to seek suppression of evidence obtained in a search of Turner's home pursuant to a warrant that was obtained using evidence from a confidential source ("CS") who had entered Turner's home without his authorization, where the judge issuing the warrant was not informed of the CS's unauthorized entry, in violation of Turner's Fourth Amendment rights against unreasonable search;

b. to seek suppression of evidence obtained about debit cards seized during that search where law enforcement did not have a warrant for a further search of the cards' activity;

c. to challenge his arrest on a federal warrant where there was no affidavit in support of the warrant;

Ground 2: Kuenneke was constitutionally ineffective in violation of his Sixth Amendment rights because she failed to seek dismissal of the indictment on the grounds that it was obtained using evidence acquired during theCS's unauthorized entry into Turner's home;

Ground 3: Kuenneke was constitutionally ineffective in violation of his Sixth Amendment rights because she failed to seek dismissal of the indictment on the grounds that Turner's state initial appearance/probable cause hearing before a state judicial officer was excessively delayed; that state and federal officials colluded; that the delayed hearing resulted in a violation of the Fifth Amendment Double Jeopardy Clause and deprived this Court of jurisdiction over Turner's case; and that state authorities impermissibly destroyed relevant evidence;

Ground 4: Turner's plea was not knowing, voluntary, and intelligent because he was on medication that rendered him incapable of making rational decisions and judgments, all in violation of his Fifth Amendment due process rights; and

Ground 5: Conviction and punishment on both Counts 1 and 2 violated the Fifth Amendment Double Jeopardy Clause because they involved the same facts, the same statute of offense, and the same investigation.

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court has determined that it is plain from the motion and the record of the prior proceedings that the petitioner is not entitled to relief on Grounds 1.c, 4, and 5. The Court will order the Government to respond to the remaining arguments in Grounds 1.a, 1.b, 2, and 3.

III. Analysis

The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). However, "[r]elief under § 2255 is available 'only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.'" United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records ofthe case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Shipman v. United States, 925 F.3d 938, 943 (7th Cir. 2019); Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).

A. Ground 4: Voluntariness of Plea

The Court starts with Turner's threshold claim that his plea was not knowing, voluntary, or intelligent. As the Court noted in its May 14, 2020, order (Doc. 2), if this is true and Turner did not competently plead guilty, it would vitiate his plea. Due process demands that a defendant who pleads guilty have the same competency level as one who proceeds to trial—"sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him," Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). Godinez v. Moran, 509 U.S. 389, 397-98 (1993); Anderson v. United States, 865 F.3d 914, 919 (7th Cir. 2017). The waiver of the right to trial must also be knowing and voluntarily. Godinez, 509 U.S. at 400-01; Anderson, 865 F.3d at 919-20.

A defendant cannot constitutionally plead guilty where his psychiatric condition or medication side-effects render him without rational understanding or unable to knowingly and voluntarily plead guilty. See Anderson, 865 F.3d at 920 (use of psychotropic drugs can create substantial doubt about defendant's fitness to plead guilty). It is for this reason that "[a] judge is required to investigate the defendant's mental state if there are indications at the plea hearing or later of an impairment that made him incompetent to plead." United States v. Hardimon, 700 F.3d 940, 943 (7th Cir. 2012). Furthermore, a defendant's outward appearance of lucidity is not conclusive of competency. Id. "A combination of deeply confused or clouded thinking with coherent speech and a normal demeanor is rare, however." Id.

Nevertheless, standard antidepressants "are taken by millions of people, and it can't just be assumed from the fact that someone is taking them that he can't think straight." Id. at 944. It is for this reason that, to justify withdrawing a guilty plea where the Court has made appropriate inquiries at the plea hearing, a defendant must "present the affidavit of a qualified psychiatrist" to demonstrate the defendant's inability to think. Id. The Court demands an equivalent level of proof before vacating a conviction and sentence.

During the plea colloquy in this case, the Court had the following exchange with Turner:

THE COURT: Are you currently taking any medications?

DEFT. TURNER: Something to help me sleep for insomnia. I don't know what it's called.

THE COURT: When did you last take it?

DEFT. TURNER: I take it every night.

THE COURT: Does that affect your ability to understand what you are doing here today?

DEFT. TURNER: No.

Plea Tr. 3-4 (Oct. 19, 2017) (Case No. 17-cr-40035-JPG, Doc. 51). In light of Turner's assurances that his medication did not affect his ability to understand the plea proceedings and the lack of any external signs of confusion or irrational thinking, the Court proceeded with the plea colloquy, eventually accepting Turner's guilty plea.

In his § 2255 motion, Turner reveals that the medication was 25 milligrams of Amitriptyline, which he claims is "a narcotic for psychological ailments and disorders" that rendered him "incapable of making rational decisions and judgments." Pet.'s § 2255 Mot. (Doc. 1 at 9-10). Amitriptyline is actually a non-narcotic tricyclic antidepressant used to treat symptoms of depression. Mayo Clinic, Drugs and supplements, Amitriptyline (oral route),https://www.mayoclinic.org/drugs-supplements/ amitriptyline-oral-route/description/drg-20072061 (visited June 15, 2021). Confusion and disturbed concentration are possible side effects of Amitriptyline. Id., https://www.mayoclinic.org/drugs- supplements/amitriptyline-oral-route/side-effects/drg-20072061 (visited June 15, 2021).

Turner now claims, contrary to his sworn statement at his plea colloquy, that his medication did affect his ability to understand his decision to plead guilty. The objective evidence supports the conclusion that he was competent to plead guilty—Turner's statements and demeanor at the plea hearing, his presentence investigation report's finding of no history of mental or emotional problems, 2d Rev. PSR ¶ 57 (Case No. 17-cr-40035-JPG, Doc. 36 at 12), and his representation on...