United States District Court, E.D. Kentucky, Northern Division, Ashland
WILLIAM H. TURNER, Petitioner,
THOMAS SMITH, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
R. Wilhoit . Jr. United States District Judgee
William H. Turner has filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. [D.
E. No. 1] This matter is before the Court to conduct to
initial screening required by 28 U.S.C. § 2243.
Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011).
April 2009, a federal grand jury sitting in Sherman, Texas
issued an indictment charging Turner and more than two dozen
other defendants for their role in a large-scale conspiracy
to manufacture and traffic in cocaine, methamphetamine, and
marijuana in violation of 21 U.S.C. § 846. On March 10,
2010, a jury found Turner guilty and that the drug quantity
attributable to the overall scope of the conspiracy was five
kilograms or more of cocaine. Based upon the jury's drug
quantity finding, Turner faced a minimum 10-year prison term.
21 U.S.C. § 841(b)(1)(A).
presentence report concluded that 60.5 kilograms of cocaine
was attributable to Turner for his participation in the
conspiracy. Turner objected to this amount during the
sentencing hearing based upon the asserted unreliability of
the testimony given by his co-conspirators [see D. E. No. 1-7
at 2-3], but that objection was overruled by the trial court
based upon the evidence adduced at trial from testifying
co-conspirators. At the conclusion of the October 24, 2010,
hearing, the trial court imposed a 235-month sentence.
United States v. Turner, No. 4: 09-CR-48-ALM-KPJ-13
(E.D. Tex. 2009).
raised numerous issues on direct appeal, among them a
challenge to the trial court's conclusions regarding drug
quantity for sentencing purposes. The Fifth Circuit rejected
that and Turner's other claims, affirming in April 2012.
United States v. Turner, No. 10-41146 (5th Cir.
February 2013, Turner filed a motion to vacate his conviction
and sentence pursuant to 28 U.S.C. § 2255 on numerous
grounds, but the primary focus was the asserted
ineffectiveness of his counsel. In a supplemental memorandum
filed in July 2013, Turner asserted an entirely-new claim:
that the imposition of a sentence based upon drug quantity
findings made by the court, not the jury, was contrary to the
Supreme Court's then-recent decision in Alleyne v.
United States, 570 U.S. 99 (2013).
trial court denied that motion in March 2016. In doing so, it
indicated that Turner's claim was, in actuality, based
upon the Supreme Court's 16-year-old decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), which
had held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt."
Id. at 490. While Turner purported to rely upon
Alleyne, that decision had merely extended the
principle of Apprendi to facts that increased a
mandatory minimum sentence, Alleyne, 570 U.S. at
107-09, something that did not occur during Turner's
prosecution and sentencing. The trial court noted that
neither Apprendi nor Alleyne applied
retroactively on collateral review, and denied the motion.
Turner sought a certificate of appealability solely upon his
Alleyne claim, which the Fifth Circuit denied in
November 2016. Turner v. United States, No. 4:
13-CV-65-ALM (E.D. Tex. 2013).
extensive memorandum filed in support of his petition, Turner
argues that (1) resort to relief under Section 2241 pursuant
to the "savings clause" of Section 2255(e) is (or
ought to be) available under a far broader set of
circumstances than current precedent permits [D. E. No. 1-1
at 9-11], and (2) the Fifth and Sixth Amendments to the
United States Constitution require that a jury, not the
court, establish the drug quantity attributable to a
defendant beyond a reasonable doubt in all circumstances. [D.
E. No. 1-1 at 5-9, 12-14]
through his memorandum, has made an admirable attempt to
navigate this byzantine area of the law, but his arguments
are wide of the mark. First, this Court is bound to follow
controlling precedent from the Sixth Circuit Court of Appeals
governing the permissible scope of the savings clause. To
properly invoke the savings clause and seek relief under
§ 2241, Turner - who challenges not his conviction but
the sentence imposed - must show that (1) his sentence was
imposed when the Sentencing Guidelines were mandatory before
the Supreme Court's decision in United States v.
Booker, 543 U.S. 220 (2005); (2) he was foreclosed from
asserting his present claim in a successive petition under
§ 2255; and (3) after his sentence became final, the
Supreme Court issued a retroactively applicable decision
establishing that - as a matter of statutory interpretation -
a prior conviction used to enhance his federal sentence no
longer qualified as a valid predicate offense. Hill v.
Masters, 836 F.3d 591, 599-600 (6th Cir. 2016).
fails to satisfy these criteria. First, Turner was sentenced
in 2010 under the Guidelines to a 235-month prison term. This
sentence was governed by the Guidelines, and it was imposed
five years after Booker rendered those Guidelines
advisory rather than mandatory. Second, nearly all of the
decisions upon which Turner relies were decided well before
his sentence was imposed, not after, and he was therefore
obligated to assert them as a ground for relief on direct
appeal or in an initial motion for relief under Section 2255.
Finally, although Turner does not expressly invoke
Apprendi in his memorandum, it is that decision and
its progeny upon which his claim ultimately rests. But that
decision was decided well before Turner was sentenced, not
after his conviction became final.
Turner could assert his Apprendi I Alleyne claim in
this proceeding, it is without merit. Turner's reliance
upon these cases is misplaced because in his case, the jury
found him guilty beyond a reasonable doubt of conspiring to
traffic in five or more kilograms of cocaine. That finding,
by a jury, was sufficient under Alleyne to render
Turner subject to the mandatory minimum 10-year sentence
established by 21 U.S.C. § 841(b)(1)(A).
Alleyne, 570 U.S. at 107. The 235-month sentence
actually imposed was more than that 10-year minimum but less
than the maximum of life imprisonment authorized by §
841(b)(1)(A). The Constitution does not require that every
fact used to decide upon a sentence within that broad range
must be found by a jury beyond a reasonable doubt. United
States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013)
(“Alleyne did not extend Apprendi to
facts that do not increase the prescribed statutory
plain from United States v. Booker, 543 U.S. 220,
233 (2005), which noted that a judge's "selection of
particular sentences in response to differing sets of facts
[does] not implicate the Sixth Amendment. We have never
doubted the authority of a judge to exercise broad discretion
in imposing a sentence within a statutory range." As the
Fourth Circuit has aptly explained:
Since Apprendi v. New Jersey, drug quantities that
increase the statutory maximum sentence are elements of the
offense and thus must be charged in the indictment and
submitted to the jury for proof beyond a reasonable doubt.
See530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000). While Apprendi affects the calculation
of the statutory maximum sentence that may be imposed, it
does not affect the calculation of the applicable sentencing
guideline range. "Sentencing judges may find facts
relevant to determining a Guidelines range by a preponderance
of the evidence, so long as that Guidelines sentence is
treated as advisory and falls within the statutory maximum
authorized by the jury's verdict." United States
v. Benkahla,530 F.3d 300, 312 (4th Cir. 2008),
cert, denied, __ U.S. __, 129 S.Ct. 950, 173 L.Ed.2d
146 (2009); see also United States v. Perry, 560
F.3d 246, 258 (4th Cir. 2009) (holding that, after United
States v. Booker,543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), district courts may "continue to
make factual findings concerning sentencing factors ... by a
preponderance of the evidence" and consider acquitted
conduct when applying the guidelines in an advisory fashion).
As long as the sentence ...