Turner v. United States

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT T. TURNER,

Petitioner,

v. Civil No. 20-cv-50-JPG

Criminal No 17-cr-40035-JPG

UNITED STATES OF AMERICA,

Respondent.

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 the

1 The Court has attempted to set forth the arguments in Turner’s motion, but it is not familiar

with the details of the investigation of this case. To the extent the Government, which knows

more about the investigation, believes the arguments need to be construed differently, the Court

invites it to do so in its response.

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CS’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 of

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the 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.

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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),

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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 direct appeal that he did not want to withdraw his guilty plea.

However, mindful that outward appearances are not always dispositive of this issue, the Court

allowed Turner an opportunity to supplement his § 2255 motion with some kind of objective

evidence of his irrationality at the plea hearing beyond his own pos hoc self-serving statement

(Doc. 2). It further warned him that if he was unable to point to some objective evidence, the

Court would reject Ground 4 as a basis for § 2255 relief.

Turner did not take the Court up on its invitation to supplement his motion. He has not

cited any objective evidence that would show his mental state was irrational such that his plea

was not valid because of side-effects from the medication he was taking at the time. Indeed,

Turner was taking a standard, commonly prescribed, non-narcotic anti-depressant medication.

His statements at the plea colloquy and his position on direct appeal, his history free of serious

mental and emotional problems, and his failure to point to objective evidence of his irrationality

make it plain on the record that Turner was competent to plead guilty. Thus, he is not entitled to

§ 2255 relief on Ground 4.

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B. Ground 1, 2, and 3: Ineffective Assistance of Counsel

The majority of Turner’s challenges to his sentence rests on alleged instances of

ineffective assistance of counsel. The Sixth Amendment to the Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel

for his defence.” U.S. Const. amend. VI. This right to assistance of counsel encompasses the

right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14

(1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).

A party claiming ineffective assistance of counsel bears the burden of showing (1) that

his counsel’s performance fell below objective standards for reasonably effective representation

and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

688-94 (1984); Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy the first

prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of

his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then

consider whether, in light of all of the circumstances, counsel’s performance was outside the

wide range of professionally competent assistance. Id. To satisfy the second prong of the

Strickland test, the petitioner “must demonstrate ‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’” Harrington v.

Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 694); accord Groves, 755 F.3d

at 591.

Where a defendant pled guilty as a result of alleged ineffective assistance of counsel, to

satisfy the first prong of the Strickland test, the petitioner must show that his counsel’s advice

leading to the plea was outside the range of professionally competent assistance. Hill v.

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Lockhart, 474 U.S. 52, 56-57 (1985) (citing McMann, 397 U.S. at 771; Tollett v. Henderson, 411

U.S. 258, 267 (1973)). To satisfy the second Strickland prong, he must show that there is a

reasonable probability that, but for his counsel’s deficient performance, he would not have

entered a guilty plea and instead would have gone to trial. Lee v. United States, 137 S. Ct. 1958,

1965 (2017); Hill, 474 U.S. at 59; United States v. Parker, 609 F.3d 891, 894 (7th Cir. 2010);

Wyatt, 574 F.3d at 458. Counsel’s deficient performance must have been a decisive factor in the

defendant’s decision to enter a guilty plea. Wyatt, 574 F.3d at 458; see Julian v. Bartley, 495

F.3d 487, 498 (7th Cir. 2007). To make such a showing, the petitioner must present objective

evidence that he would not have entered a guilty plea; his own self-serving testimony that he

would have insisted on going to trial is not enough. Koons v. United States, 639 F.3d 348, 351

(7th Cir. 2011); McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (citing Toro v.

Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991)); see Wyatt, 574 F.3d at 458 (stating “a

defendant’s mere allegation that he would have chosen a path other than the conditional plea is

insufficient by itself to establish prejudice.”). “Courts should not upset a plea solely because of

post hoc assertions from a defendant about how he would have pleaded but for his attorney’s

deficiencies. Judges should instead look to contemporaneous evidence to substantiate a

defendant's expressed preferences.” Lee, 137 S. Ct. at 1967.

The Court attempts to addresses Turner’s scatter-shot assertions of constitutionally

ineffective counsel in some semblance of logical order:

1. Suppression of Evidence

When a petitioner claims his counsel was ineffective for failing to file a motion to

suppress, the petitioner bears the burden of proving the motion would have been meritorious.

Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017). Turner faults his counsel for failing to

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seek suppression of evidence on a variety of grounds:

Ground 1.a: Turner believes competent counsel would have moved to suppress

evidence seized pursuant to a search warrant issued by a state court judge who was not informed

that the information used to support the warrant was obtained from a confidential source (“CS”)

who was trespassing in Turner’s home at the time. Turner’s argument appears to be based on

the fact that when the CS came to Turner’s home on March 17, 2017, Turner failed to answer the

door, so the CS entered the home and found Turner asleep in his bedroom. The investigation

report then states that Turner sold the CS methamphetamine. This is the transaction that formed

the basis for the distribution charged in Count 1. Turner claims Kuenneke told him such a

motion would be fruitless, which demonstrates she evaluated whether to file the motion and did

not act merely out of ignorance of the issue. However, there is simply not enough information

in the motion or the record of the case to determine whether such a motion could have been

successful or whether there is a reasonable probability that Turner would not have pled guilty

had such a motion been filed.

Ground 1.b: Turner also believes competent counsel would have moved to suppress

digital information law enforcement obtained without a warrant or probable cause from his

seized debit cards by running these cards through a financial crimes system scanner. In

dismissing his direct appeal, the Court of Appeals mentioned Carpenter v. United States, 138 S.

Ct. 2206 (2018), which was decided June 22, 2018, and changed the legal landscape for some

electronic searches. Turner claims Kuenneke told him no search warrant was required for law

enforcement to retrieve information about the debit cards seized from his residence, and she

declined to file a motion to suppress that evidence. Again, there is simply not enough

information in Turner’s § 2255 motion or the record of the case to determine whether such a

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motion could have been successful or whether there is a reasonable probability that Turner would

not have pled guilty had such a motion been filed.

Ground 1.c: Turner believes Kuenneke should have sought to suppress or quash his

arrest on the federal warrant because the warrant was not supported by an affidavit

demonstrating probable cause to arrest him. The Fourth Amendment states that “no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing . . . persons . . . to be seized.” U.S. Const. amend. IV.

The federal warrant to arrest Turner (Case No. 17-cr-40035-JPG, Doc. 4) complied with

the Fourth Amendment because it was issued pursuant to a Grand Jury indictment (Case No. 17-

cr-40035-JPG, Doc. 1). An indictment—fair on its face and rendered by a properly constituted

grand jury—conclusively establishes probable cause to believe the charged defendant committed

the crimes charged. Kaley v. United States, 571 U.S. 320, 328 (2014); Morfin v. Tillerson, 851

F.3d 710, 713 (7th Cir. 2017). An indictment further “triggers issuance of an arrest warrant

without further inquiry into the case’s strength.” Kaley, 571 U.S. at 329 (internal quotations

omitted). “The grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by

finding probable cause to support a criminal charge.” Id.

Here, the Clerk of Court issued the warrant pursuant to the Grand Jury’s indictment

which found, based on evidence given under oath, that probable cause existed to believe that

Turner had committed the three federal crimes charged in the indictment, and the warrant

particularly identified Turner by name. Thus, the warrant complied with the Fourth

Amendment. Any impropriety that may have existed in procuring Turner’s arrest on state

charges was superseded by the validly obtained federal warrant. Counsel was not deficient for

failing to challenge the federal warrant, and any such challenge would not have had a reasonable

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chance of changing the result of the proceedings. The Court therefore rejects Ground 1.c as a

basis for § 2255 relief.

2. Dismissal of the Indictment

When a petitioner claims his counsel was ineffective for failing to file a motion to

dismiss the indictment, the petitioner must show the motion would have been meritorious. See

Blake v. United States, 723 F.3d 870, 885 (7th Cir. 2013). “It is not ineffective assistance for

counsel to not file a meritless motion.” United States v. Nolan, 910 F.2d 1553, 1564 (7th Cir.

1990). In Grounds 2 and 3, Turner faults his counsel for failing to seek dismissal of the

indictment on a variety of grounds that involve events in state court that are not reflected in the

record of this case. There is simply not enough information in Turner’s § 2255 motion or the

record of the case to determine whether a motion to dismiss the indictment would have been

successful on any grounds or whether there is a reasonable probability that Turner would not

have pled guilty had such a motion been filed.

C. Ground 5: Double Jeopardy

Turner claims his convictions on both Counts 1 and 2 place him in Double Jeopardy in

violation of the Fifth Amendment. The Fifth Amendment provides, “No person shall be . . .

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

This prohibition establishes the right not to be punished twice for the same offense. Brown v.

Ohio, 432 U.S. 161, 165 (1977); United States v. Morgan, 929 F.3d 411, 421 (7th Cir. 2019);

United States v. Hatchett, 245 F.3d 625, 630 (7th Cir. 2001) (citing Illinois v. Vitale, 447 U.S.

410, 415 (1980)). “[T]he test to be applied to determine whether there are two offenses or only

one, is whether each provision requires proof of a fact which the other does not.” Blockburger

v. United States, 284 U.S. 299, 304 (1932); accord United States v. Burrows, 905 F.3d 1061,

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1065 (7th Cir. 2018).

Turner argues Counts 1 and 2 amount to the “same offense” because they involved the

same facts, violation of the same statute, and the same investigation. They do not, however,

actually involve the same facts. Count 1 charged Turner with distributing methamphetamine on

or about March 17, 2017, and Count 2 charged him with distributing methamphetamine on or

about April 5, 2017. Each distribution conviction required proof of different conduct on

different occasions, so they were not the “same offense.” See, e.g., United States v. Wood, 983

F.2d 1074, 1993 WL 3069, at *1 (7th Cir. Jan. 7, 1993) (Table; offenses occurring on different

dates with different victims are not same offense for double jeopardy purposes). Thus, Counts 1

and 2 are not the “same offense” for double jeopardy purposes, and each can be punished

separately without violating the Double Jeopardy Clause. Ground 5 does not warrant relief

under § 2255.

IV. Conclusion

The Court rejects as a basis for 2255 relief Grounds 1.c, 4, and 5. The Court ORDERS

the Government to file a response to Grounds 1.a, 1.b, 2, and 3 of the petitioner’s § 2255 motion

within FORTY-FIVE DAYS of the date this order is entered. The Government shall, as part of

its response, attach all relevant portions of the record in the underlying criminal case. The

petitioner shall have 30 days to reply to the Government’s response.

IT IS SO ORDERED.

DATED: June 21, 2021

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE

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