United States v. Turner, Case No. 12-cv-20617

UNITED STATES OF AMERICA, Plaintiff, v. ALVIN J. TURNER Defendant.

Case No. 12-cv-20617

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 4, 2015

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Alvin Turner, a federal prisoner confined at the Federal Correctional Institution in Milan, Michigan, has filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, in which he seeks to set aside his plea-based conviction for conspiracy to possess with intent to distribute and to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In seeking relief from this Court, Turner relies on five basic arguments. The first argument is that his guilty plea was coerced and tainted by the prosecutor's threat to file a sentence enhancement. The remaining arguments implicate the Sixth Amendment to the United States Constitution, specifically, the right to effective assistance of counsel. Turner contends that his attorney renderedconstitutionally-inadequate assistance on the following grounds: (1) counsel failed to seek enforcement of an Attorney General issued memorandum on the subject of federal sentence enhancement practices; (2) counsel created a conflict of interest by advising Turner to accept a collateral attack waiver in his plea; (3) counsel failed to object to violations of the McNabb-Mallory rule and the Speedy Trial Act, 18 U.S.C. § 3161; and (4) counsel failed to object to several reversible Rule 11 violations that occurred during Turner's plea hearing. Turner asks that this Court set his conviction aside, or, in the alternative, asks this Court to hold an evidentiary hearing to establish the factual predicates of his various claims. For the reasons set forth below, the Court declines to conduct an evidentiary hearing, denies Turner's motion, and declines to issue a certificate of appealability.

I. FACTUAL AND PROCEDURAL BACKGROUND

Sometime prior to May 15, 2012, the Drug Enforcement Administration ("DEA") intercepted a shipment from Arizona containing ten kilograms of cocaine that were meant to be delivered to Turner. On May 15, Turner traveled to a hotel in Woodhaven, Michigan to retrieve the product. Turner arrived at the hotel as scheduled, took possession of what he believed to be ten kilograms of cocaine,¹ and departed in a vehicle driven by another man. Soon thereafter, law enforcementofficials stopped the vehicle in which Turner was traveling. A canine ("K9") unit was dispatched to the scene and detected narcotics in the vehicle. At approximately 11:26 AM, Turner and the driver were taken into custody.

Law enforcement officials advised Turner of his Miranda rights upon taking him into custody, which Turner waived prior to being interviewed. During this interview, Turner admitted that he took possession of what he believed to be ten kilograms of cocaine, and also acknowledged that the supply was sent to him from Arizona. While in custody, Turner signed a waiver of appearance, effectively waiving his right to appear before the nearest magistrate judge without unnecessary delay. Because he signed this waiver, and because he agreed to cooperate with the DEA, Turner was released from custody at approximately 5:30 PM. At the time of his arrest, Turner was on supervised release from a 2003 conviction for conspiracy to possess with intent to distribute and to distribute more than fifty grams of crack.

On September 18, 2012, a federal grand jury charged Turner in a two-count indictment with conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine (Count I), and attempted possession with intent to distribute five kilograms or more of cocaine (Count II), both in violation of 21 U.S.C. §§ 841(a)(1) and 846. (ECF No. 3.)

On September 12, 2013, nearly one year after the grand jury issued the indictment, Turner pleaded guilty to Count I (the conspiracy count) in exchange forthe Government refraining from seeking a sentence enhancement and dismissing Count II (the attempt count). The terms of the plea were set forth in a Rule 11 agreement, which Turner signed. (Plea Ag., ECF No. 20.) The sentencing guidelines for the offense in Count I ranged from 120-135 months. However, the operative plea agreement called for a higher sentence. Specifically, Turner and the Government agreed that Turner would recommend and seek a sentence of no less than 180 months (fifteen years) because he acknowledged that the Government could enhance his sentence to a minimum of 240 months (twenty years) pursuant to 21 U.S.C. § 851.² In addition to setting forth the specifics regarding the sentence, the plea agreement contained appellate and collateral attack waivers.

During the plea hearing, which was held on September 12, 2013, Turner acknowledged his understanding of the terms of the Rule 11 plea agreement:

THE COURT: I have before me a document entitled a Rule 11 plea agreement which appears on page four to indicate that defendant's guideline range is 120 to 135 months, is that your understanding of the range you've agreed to?

THE DEFENDANT: Yes.

THE COURT: On page 5 at 3(a) under the topic "Imprisonment", it says "The sentence of imprisonment may not exceed the top of the sentencing guideline as determined by paragraph 2B", which is 135 months, do you understand that?

THE DEFENDANT: Yes.

THE COURT: And it also indicates that the Court must impose a statutory sentence of at least ten years.

THE DEFENDANT: Yes.

THE COURT: It also indicates, pursuant to this agreement, the Government and Defendant, the court must impose a sentence of imprisonment on Count One of at least 15 years, that's your understanding?

THE DEFENDANT: Yes.

(Plea Hr'g Tr. 5, ECF No. 23.) After a series of questions ensuring that Turner understood the terms of the plea, that he was pleading freely and voluntarily, and that he was not coerced into pleading guilty, the Court accepted Turner's guilty plea. (Id. at 9.)

On December 17, 2013, and in accordance with the provisions contained in the Rule 11 agreement, the Court sentenced Turner to a 180-month term of incarceration with the Bureau of Prisons, to be followed by five years of supervised release. (Sent'g Hr'g Tr. 13-14, ECF No. 24.)

On December 24, 2014, Turner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 25.) Pursuant to a directive from the Court, the Government responded to Turner's motion on February 13, 2015. (ECF No. 29.) Then on March 4, 2015, the Court received Turner's "Motion to Amend in Relation-Back to the Original § 2255 Petition" and a"Motion to Expand the Scope of the § 2255 Proceedings Record." (ECF Nos. 30, 31.) It is not entirely clear what Turner seeks in the former, although he does specifically object to the Court's show cause order requiring the Government to file a response to his motion. This objection is entirely unfounded, as Rule 4(b) of the Rules Governing Section 2255 Proceedings requires a court to order a response from the Government if the petition is not dismissed after preliminary review. In the latter motion, Turner presents additional legal argument and exhibits. The Court notes that it has considered the materials presented in both March 4 motions, therefore, grants both motions to the extent they seek such consideration but denies both motions to the extent that they could be construed to request any specific relief from this Court.

II. GOVERNING LEGAL STANDARD

Under 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

In order to prevail upon such a motion, "the movant must allege as a basis for relief: '(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact of law that was so fundamental as to renderthe entire proceeding invalid." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).

To prevail on a § 2255 motion alleging constitutional error in connection with a guilty plea, a prisoner "must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea[.]" Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 1721-22 (1993.)) "Relief is warranted only where a [prisoner] has shown a fundamental defect which inherently results in a complete miscarriage of justice." Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2305 (1974)). In order to prevail on a § 2255 motion alleging non-constitutional error, a prisoner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000).

A prisoner seeking relief pursuant to § 2255 bears the burden of establishing the claims asserted in his motion. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). "It is a 'well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on directappeal.'" Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998) (quoting United States v. Frandy, 456 U.S. 152, 166, 102 S. Ct. 1584, 1593 (1982)).

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