# United States v. Turner

> District Court, N.D. Illinois · July 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10145057

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** July 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10145057. Public record. Not legal advice.