United States v. Turner

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Respondent, )

)

vs. ) Case No. 21 C 129

)

HARVEY TURNER, )

)

Movant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In October 2004, grand jury indicted Harvey Turner on three counts: unlawful

possession of a firearm by a felon (count one); possession of a controlled substance

with intent to deliver (count two); and possession of a firearm in relation to a drug

trafficking crime (count three). Turner pled guilty to all three charges, and another judge

of this Court sentenced him to a prison term of 292 months. In January 2007, Turner

filed a motion under 28 U.S.C. § 2255, which the same judge denied. In January 2019,

Turner filed a pro se motion under the First Step Act for a reduction in his sentence with

respect to count two of his conviction. The case was then reassigned to the

undersigned judge. The Court granted Turner's motion and reduced his sentence with

respect to the second count by 24 months, which resulted in an aggregate prison term

of 268 months.

In January 2021, Turner filed a motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct his sentence with respect to count one of his conviction. The

government has moved to dismiss the petition for lack of subject matter jurisdiction on

the ground that Turner's motion is an unauthorized and successive section 2255 motion.

The Court grants the government's motion for the reasons stated below.

Background

On October 21, 2004, a grand jury indicted Harvey Turner on charges of

possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. §

924(e) (count one); possession of a controlled substance with intent to deliver, in

violation of 21 U.S.C. § 841(a)(1) (count two); and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (count

three). On April 22, 2005, Turner entered a plea of guilty on all counts.

On August 31, 2005, the previously assigned judge sentenced Turner to a prison

term totaling 292 months. On count one, the judge imposed the mandatory minimum

term of 180 months' imprisonment under the Armed Career Criminal Act, 18 U.S.C. §

924(e), given Turner's prior convictions. On count two, the judge imposed a term of 60

months' imprisonment, with 52 months of the sentence to run consecutively with count

one. On count three, the judge sentenced Turner 60 months' imprisonment, to run

consecutively with the sentences on counts one and two.

A. First section 2255 motion

In January 2007, Turner sought relief under section 2255. He argued that his

attorney was ineffective prior to his guilty plea and that his prior convictions—for

aggravated discharge of a firearm and narcotics trafficking—should not have been

counted as career-offender predicates under U.S.S.G. § 4B1.1(a). The sentencing

judge denied Turner's section 2255 motion in April 2007.

In May 2016, Turner applied to the court of appeals for authorization to file a

second or successive section 2255 petition, arguing that count three of his conviction,

for possession of a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c), ran

afoul of Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Supreme

Court ruled that the residual clause of the Armed Career Criminal Act of 1984 (ACCA)

was unconstitutionally vague. On June 14, 2016, the Seventh Circuit denied Turner's

application. It determined that his section 924(c) conviction was for possessing a

firearm in furtherance of a drug trafficking crime, not a crime of violence under the

ACCA's residual clause, and thus his conviction was unaffected by the Johnson

decision. See Turner v. United States, No. 16-2144 (7th Cir. June 14, 2016).

B. 2019 sentence reduction

On January 22, 2019, Turner filed a pro se motion for a reduced sentence based

on section 404 of the First Step Act of 2018. Pub. L. No. 115-391, 132 Stat. 5194, §

404(a) (2018). The First Step Act of 2018 makes the Fair Sentencing Act of 2010's

provisions retroactive, such that an incarcerated person can submit a motion to have his

sentence reduced based on the Fair Sentencing Act's penalty-reducing terms.

The Court granted Turner's motion under the First Step Act. On January 10,

2020, the Court modified Turner's total sentence to 268 months' imprisonment and

issued an amended judgment and commitment order to that effect. The terms of

imprisonment with respect to count one and count three remained the same as before.

On count two, however, the Court modified Turner's sentence to a 60-month term of

imprisonment, with 28 of those months to run consecutively to the sentences on other

counts, and 32 to run concurrently to the other counts.

C. Current section 2255 motion

On January 8, 2021, Turner filed a section 2255 motion in this Court. He

challenges the validity of his 180-month sentence on count one. Turner contends, citing

the Seventh Circuit's decision in United States v. Ruth, 966 F.3d 642 (7th Cir. 2020),

that he was wrongly sentenced as an armed career criminal under 18 U.S.C. § 924(e)

based on his prior narcotics conviction. In Ruth, the Seventh Circuit ruled that, under

Illinois law, a conviction for possession with intent to deliver cocaine is not a felony drug

offense within the meaning of the ACCA. Id. at 650. Turner argues, based on Ruth,

that his cocaine convictions under Illinois law cannot be used to enhance his sentence

on count one.

On February 16, 2021, the government moved to dismiss Turner's section 2255

motion because it is a second or successive motion for which he has not obtained

authorization from the Seventh Circuit. Accordingly, the government argues, this Court

lacks subject matter jurisdiction to consider Turner's motion.

Discussion

Under 28 U.S.C. § 2255, a court may vacate, set aside, or correct a sentence

imposed in violation of the laws of the United States.

A. Subject matter jurisdiction

A district court lacks subject matter jurisdiction to adjudicate an unauthorized

second or successive motion under section 2255. Adams v. United States, 911 F.3d

397, 403 (7th Cir. 2018) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir.

1996)); 28 U.S.C. § 2255(h) ("[a] second or successive motion must be certified as

provided in section 2244 by a panel of the appropriate court of appeals"). "Section 2255

gives a federal prisoner one opportunity to challenge a conviction and sentence

following a direct appeal." Suggs v. United States, 705 F.3d 279, 281-82 (7th Cir.

2013).

The government argues that Turner's current motion is a "second or successive

motion" within the meaning of 28 U.S.C. § 2255(h) because he filed an initial section

2255 motion in 2007, which was unsuccessful, and he has not received authorization

from the Seventh Circuit to proceed on his current section 2255 motion. Turner argues

in response that under the rule of Magwood v. Patterson, 561 U.S. 320 (2010), this is

not a second or successive section 2255 motion because his sentence was amended in

January 2020, pursuant to his motion under the First Step Act. In Magwood, the

Supreme Court held that if "there is a new judgment intervening between two habeas

petitions, an application challenging the resulting new judgment is not second or

successive." Id. at 341-42 (internal quotations and citations omitted). Accordingly,

Turner contends, this Court may consider the merits of the current motion.

B. Magwood

The Seventh Circuit has addressed the Magwood rule in two key cases. First, it

ruled in White v. United States, 745 F.3d 834 (7th Cir. 2014), that the district court’s

reduction of a sentence under 18 U.S.C. § 3582(c)—because of a retroactive change in

the sentencing guidelines—is not a new judgment. And second, in Turner v. Brown,

845 F.3d 294 (7th Cir. 2017), the Court rejected a habeas corpus petitioner's contention

that his resentencing on one count of a multi-count conviction "reset the clock for

calculating AEDPA's statute of limitations" like "the intervening sentence in Magwood

reset the habeas counter for purposes of counting the number of petitions." Id. at 297.

The parties disagree about the applicability of White v. United States and Turner

v. Brown in Turner's case. The Court begins with an overview of both decisions.

1. White v. United States

A prisoner, Juan White, filed an initial section 2255 motion challenging his 2006

cocaine conviction. The motion was denied. Thereafter, the Sentencing Commission

adopted Amendment 750, "which retroactively cut the offense levels for crack-cocaine

offenses." Id. at 835. Based on this change, White asked for a reduction of his

sentence under 18 U.S.C. § 3852(c). In 2012, a judge reduced White's sentence from

360 months' imprisonment to 292 months. Id.

Nine months after his sentence was reduced, White filed a second section 2255

motion, contending that his "sentence is illegally high because the Guidelines range

calculated in 2006 is wrong." Id. In his second motion, White argued, based on

Magwood, that "his sentence reduction in 2012 . . . reset to zero his count of collateral

attacks." Id. at 836. The Seventh Circuit summarized the Magwood rule as follows:

Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788, 177 L. Ed. 2d 592

(2010), holds that the issuance of a writ of habeas corpus setting aside a

sentence as invalid, followed by the imposition of a new sentence, resets

the clock and the count, so that an attack may be waged against the new

sentence even if the same legal grounds could have been urged against

the original sentence.

Id. at 836.1 The Court rejected White's invocation of the Magwood rule, concluding that

1 The Seventh Circuit also addressed Magwood's holding in Suggs v. United States,

705 F.3d 279 (7th Cir. 2013), but Suggs concerned a question that is distinct from the

one Turner raises in his current habeas petition. See White, 745 F.3d at 836 ("Whether

Magwood has any other effect was the subject of disagreement among members of this

court in Suggs. . . . [but] [t]he issue in Suggs does not affect White's case.") (internal

parentheticals omitted). In Suggs, the Court encountered a "situation" to which "[t]he

Magwood Court expressly declined to extending its holding." Suggs, 705 F.3d at 280-

81. The Seventh Circuit held in Suggs that a "second motion [that] challenges the

"Magwood does not reset the clock or the count, for purses of § 2244 and § 2255, when

a prisoner's sentence is reduced as the result of a retroactive change to the Sentencing

Guidelines." Id. at 837. The Court's rationale was as follows:

To say that White's sentence has changed is not, however, to say that he

is in the same position as Magwood, who demonstrated in his initial

collateral attack that his original sentence violated the Constitution.

White's invocation of Amendment 750 did not rest on a contention that his

2006 sentence was unlawful (constitutionally or in any other way), and the

district judge did not find it so. Instead White contended, and the judge

concluded, that the Guidelines had changed after 2006, and that § 3582(c)

authorizes a reduction because the Sentencing Commission made that

change retroactive.

This might be thought a semantic quibble, if the result of Amendment 750

were that older judgments are vacated and all prisoners resentenced.

Then, as in Magwood, the judge might have committed a second time the

error that the prisoner sought to contest. But White, unlike Magwood, was

not sentenced anew. The procedure established by § 3582(c) is not

"resentencing". It is a sentence-reduction proceeding.

There are substantial differences between resentencing and sentence

reduction under § 3582(c). One is that the district judge need not (and

usually does not) receive evidence or reopen any issue decided in the

original sentencing. Nor does the judge hold a hearing at which the

defendant is present and a new sentence is pronounced. Instead the

judge takes as established the findings and calculations that led to the

sentence and changes only the revised Guideline, leaving everything else

the same. . . . The penalty goes down, but the original judgment is not

declared invalid.

White was not resentenced in 2012. The judge was forbidden to

reexamine the effect that acceptance of responsibility and supervision of

others have on White's Guidelines range. The judge accordingly did not

commit—could not have committed, if he tried—any repetition of an error

supposedly rooted in 2006. No error subject to collateral review occurred

in 2012.

Id. at 836-37 (internal citations omitted). Turner argues that the White case does not

original conviction, not the new sentence" is a second or successive motion and thus

affirmed the district court's dismissal for lack of jurisdiction. Id. at 281.

govern his current section 2255 motion because the amended judgment in his case was

based on the First Step Act, not a retroactive change in the sentencing guidelines like

the amended judgment in White.

Turner also suggests that the court of appeals took "a questionable approach to

Magwood." Mov.'s Resp. Br. at 3 (dkt. no. 12). The government characterizes Turner's

position on White as "a distinction without a difference." Gov.'s Reply Br. at 2 (dkt. no.

13). It argues that Turner's resentencing, was, as in White, "similarly limited to a single

issue . . . in a proceeding that left undisturbed his sentence regarding his § 922(g)

conviction [in count one]." Id. at 3.

2. Turner v. Brown

The Seventh Circuit examined Magwood again in Turner v. Brown, 845 F.3d 294

(7th Cir. 2017), and further refined controlling precedent. Daniel Turner was convicted

and sentenced to life imprisonment for murder, criminal confinement, and attempted

robbery in 1995. Id. at 295. In 2000, Turner filed a pro se petition for post-conviction

relief in Indiana state court. On July 1, 2013, the state trial court resentenced him and

reduced his term of imprisonment on the robbery count. Id. The Seventh Circuit noted

that "[t]he 2013 order did not reference or alter Turner's other convictions or sentences

for murder and criminal confinement." Id.

Then, on January 31, 2013, Turner filed a habeas corpus petition in the Southern

District of Indiana challenging his sentence for murder based on ineffective assistance

of counsel, which the court denied. Id. at 295-26. Turner then appealed to the Seventh

Circuit, and at oral argument, he invoked Magwood:

Just as the intervening sentence in Magwood reset the habeas counter for

purposes of counting the number of petitions, Turner contends that his

2013 resentencing reset the clock for calculating AEDPA’s statute of

limitations. The problem with Turner’s position, however, is that the relief

he was granted in 2013 was limited to his robbery conviction, whereas his

habeas petition challenges his conviction and life sentence for murder.

Thus, the judgment that is relevant for purposes of his present petition is

the one from 1995, and the clock has long since run out on this habeas

petition.

Id. at 297. In so holding, the Seventh Circuit indicated that a habeas corpus petitioner's

reliance on Magwood is unsuccessful where there has been a change to one count in a

multi-count conviction and the petitioner is seeking relief with respect to another count.2

3. Turner's current motion

The Seventh Circuit has not yet addressed whether its position on Magwood in

White v. United States is limited to modifications of existing terms of imprisonment

under 18 U.S.C. § 3582, or whether it also extends to First Step Act proceedings.

Further, it is not entirely clear, based on Turner v. Brown, whether the Seventh Circuit

would treat Turner's sentence reduction under the First Step Act as a partial new

judgment, such that he may file (without leave from the court of appeals) a section 2255

motion challenging his sentence on count two of his conviction, but not count one. As

previously indicated, Turner's current section 2255 motion entirely concerns count one.

A district court's review of a First Step Act motion is "a two-step process." United

States v. Fowowe, --- F.4th ---, 2021 WL 2450405, at *3 (7th Cir. June 16, 2021). "First,

a judge considering a motion for a reduced sentence under the First Step Act is faced

with the question of whether the defendant is eligible for a sentence reduction. Second,

2 The Seventh Circuit's reading of Magwood, particularly with respect to its decision in

Turner v. Brown, 845 F.3d 294 (7th Cir. 2017), puts it in a minority position among the

circuits. See Burch, "New Judgment" and the Federal Habeas Statutes, 8 Calif. L. Rev.

Online 88, 93-94 (2017) (observing that the Seventh Circuit "limits [petitioners] to

challenging the part [of their judgment] that was changed").

if the defendant is eligible, then the court faces the question of whether it should reduce

the sentence." Id. (quotation marks omitted and alterations accepted).

Turner contends that sentence-reduction proceedings under the First Step Act

are distinguishable "since they differ greatly from proceedings involving retroactive

guidelines." Mov.'s Resp. Br. at 4. In the Seventh Circuit's view, however, section

3582(c)(2) and section 404 of the First Step Act are similar in many respects. For

example, the court has observed that each "permit[s] a district court to reduce

sentences because of retroactive legal changes." United States v. Blake, 986 F.3d 756,

758 (7th Cir. 2021). Also, the court has noted that there is no constitutional right to

counsel when seeking to reduce a sentence under either statute. United States v.

Millbrook, 840 F. App'x 25, 27 (7th Cir. 2021).

Turner next argues that the Seventh Circuit characterizes a First Step Act

proceeding as "a resentencing and not a mere sentence reduction." Mov.'s Resp. Br. at

5. Turner makes an important point. The Seventh Circuit has ruled that "the First Step

Act does not include the limitations particular to § 3582(c)(2)," and it has cautioned

against "improperly liken[ing] a motion brought under the First Step Act to one brought

under 18 U.S.C. § 3582(c)(2)." United States v. Shaw, 957 F.3d 734, 742-43 (7th Cir.

2020); see also United States v. Sutton, 962 F.3d 979, 983 (7th Cir. 2020). Section

3582(c)(2) limits sentence reductions to situations where there are "extraordinary and

compelling reasons"; where a reduction is specifically permitted by statute or rule; or

where the defendant's Sentencing Guidelines range was subsequently reduced and

made retroactive by the Sentencing Commission.

The court thus acknowledged in Shaw and in United States v. Hudson, 967 F.3d

605 (7th Cir. 2020), that there may be a meaningful difference between a "resentencing"

proceeding under the First Step Act and a "sentence reduction" proceeding under

section 3582(c)(2). But in both decisions, it did not go further than saying that the

limitations under section 3582(c)(2) do not apply in First Step Act cases. Hudson, 967

F.3d at 613 n.7; Shaw, 957 F.3d at 743. In any event, the court in Hudson explained

that "a judge considering a motion for a reduced sentence under the First Step Act is

faced with the [same] question": "whether the defendant is eligible for a sentence

reduction." Id. at 609.

The White case, which concerned a sentence reduction based on section

3582(c)(2), does not definitively settle the question of whether Turner's sentence

reduction under the First Step Act is a new judgment that reset the count, such that the

Court may consider his section 2255 petition without advance authorization by the court

of appeals. White's underlying rationale, however, indicates that Turner's First Step Act

sentence reduction does not, in fact, reset his count of section 2255 motions to zero.

First, Turner's motion, like the motion in White, does not "rest on a contention" that his

prior sentence was unconstitutional or otherwise unlawful when imposed. White, 745

F.3d at 836. And "the district judge did not find it so." Id. Second, Turner was not

"sentenced anew." Id. Rather, his existing sentence was reduced with respect to a

single count. Id. The Court did not hold a plenary sentencing hearing, and the First

Step Act did not call upon the Court to do so.3 United States v. Corner, 967 F.3d 662,

665 (7th Cir. 2020). As in the "procedure established by § 3582(c)," a judge proceeding

3 The Seventh Circuit has not answered the question of "[w]hether a sentence

modification under the First Step Act requires a plenary resentencing hearing." United

States v. Hamilton, 790 F. App'x 824, 826 (7th Cir. 2020) (emphasis added).

under the First Step Act does not "hold a hearing at which the defendant is present and

a new sentence is pronounced." White, 745 F.3d at 836. Nor does the judge, in a First

Step Act proceeding, "receive evidence or reopen any issue decided in the original

sentencing." Id. The Seventh Circuit has also held that a prisoner does not have a

statutory right to counsel on a motion based on the First Step Act. Blake, 986 F.3d at

758.

Even if the Court is wrong in its reading of Seventh Circuit precedent such that

Turner's sentence reduction did "reset the count" of section 2255 motions in some way,

it is highly unlikely that this would do him any good with respect to the present motion.

In Turner v. Brown, the Seventh Circuit discussed Magwood in the context the

timeliness of habeas petitions—the equivalent, for present purposes, of a section 2255

motion. Turner, 845 F.3d at 296-97. The court indicated that Magwood cannot be

invoked to reset the limitations clock with respect to particular counts of conviction that

are not the subject of an intervening resentencing; rather, the Magwood rule is limited to

the "portion of a judgment" that was covered in the resentencing proceeding. Id. at 298.

The Seventh Circuit's Turner ruling indicates that it parses sentence-reduction

judgments in multiple-charge cases and treats them as new judgments only in part.

Thus to the extent Turner, the movant here, is able to invoke Magwood despite

the discussion above, it would appear that he could do only if he were challenging the

sentence associated with count two of his conviction, as that was the only part of his

sentence that was modified via his motion under the First Step Act. Here, however,

Turner is challenging his sentence with respect to count one, which the First Step Act

proceeding did not change. See id. at 296-97; see also United States v. Redd, No.

1:03-CR-53, 2014 WL 1370332, at *3 (N.D. Ind. Apr. 8, 2014) ("The sentence reduction,

however, did not invalidate the original judgment. Rather, the Court simply reduced his

total offense level and, in its discretion, imposed a lower sentence for the affected

counts.")

Accordingly, Turner's argument that his section 2255 motion is not a second or

successive motion because his sentence was amended under the First Step Act lacks

merit. See United States v. Morris, No. 99 10086 03, 2021 WL 2036544, at *2-3 (D.

Kan. May 21, 2021) ("the modification to Defendant’s sentence [under the First Step

Act] was not a new, intervening judgment, and his current § 2255 motion is a

successive § 2255 motion over which this court has no jurisdiction").

The Court therefore grants the government's motion to dismiss Turner's motion.

Turner's section 2255 motion is dismissed without prejudice for want of subject matter

jurisdiction because it is a "second or successive petition" and Turner has not obtained

"an order authorizing the district court to consider the application" from the Seventh

Circuit. 28 U.S.C. § 2255(h).

Conclusion

For the foregoing reasons, the Court grants the government's motion to dismiss

[8]; dismisses Turner's motion under 28 U.S.C. § 2255 [2]; terminates all other pending

motions [5]; and directs the Clerk to enter judgment dismissing Turner's motion without

prejudice for lack of subject matter jurisdiction.

United States District Judge

Date: July 8, 2021

13