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United States v. Turner

United States District Court, D. Maine

March 27, 2019

UNITED STATES OF AMERICA
v.
CHRISTIAN TURNER Defendant

          ORDER ON MOTION FOR RECONSIDERATION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The Court denies an inmate's motion for reconsideration of an order affirming a recommended decision, which recommended that the Court deny his motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. The Court denies the motion because the inmate's § 2255 petition is untimely, because the inmate waived the right to challenge the grounds for the recommended decision and affirmance, because his motion for reconsideration is itself untimely, because the inmate is improperly attempting to raise a new issue in his motion for reconsideration, and because, if the Court reached the merits of his newest contentions, they fail as a matter of fact and law.

         I. BACKGROUND

         A. Charges, Conviction and Sentence

         On February 12, 2015, a federal grand jury indicted Christian Turner along with ten other defendants, charging them with engaging in a conspiracy to distribute cocaine base in violation of federal criminal law. Indictment at 1-2 (ECF No. 3). The indictment charged that Mr. Turner was responsible for 280 or more grams of cocaine base. Id. The grand jury also indicted Mr. Turner with engaging in a conspiracy with three other individuals to violate federal firearms laws. Id. at 3. On September 2, 2015, Mr. Turner pleaded guilty to both charges. Min. Entry (ECF No. 269). On July 1, 2016, the Court sentenced Mr. Turner to 300 months of incarceration on Count One, the drug conspiracy charge, and 60 months on Count Two, the firearms conspiracy charge. J. (ECF No. 542). Mr. Turner did not appeal.

         B. Christian Turner's Habeas Corpus Petition and Response

         On April 6, 2018, Mr. Turner filed his first motion under 28 U.S.C. § 2255. Mot. to Correct and Reduce Sentence (ECF No. 735). In his petition, Mr. Turner described the issue:

I was given an improper 2 level enhancement for “criminal livel[i]hood.” The reason this enhancement needs to be taken off my sentence is that, since my conviction & sentence, the various law enforcement agencies and police departments respons[i]ble for saddling me with my past arrests have been subject to various consent decrees & DOJ over[sight]. The reason for this is a Federal finding of a “pattern of racially motivated bias” and “racist policies & practices” on the part of said police agencies, stretching back more th[a]n 10 years, targeting black and [H]ispanic people. I am black, and fall under this unconstitutional pattern of government [harassment].
It is not on me to “prove” bias; bias, racially motivated bias, has been established.
I ask the court for a new sentencing hearing, appointment of counsel, a copy of my updated docket sheet, and a copy of this filed motion.

Id. at 1.

         On April 10, 2018, the Magistrate Judge ordered the United States Attorney to file a response and allowed Mr. Turner thirty days thereafter to file a reply. Order to Answer (ECF No. 737). On May 31, 2018, the Government filed a response and moved for a summary dismissal of the petition. Gov't's Resp. to Pet'r's Mot. Pursuant to 28 U.S.C. § 225 and Mot. for Summ. Dismissal (ECF No. 740). The Government argued that the Court should dismiss Mr. Turner's petition for four reasons: (1) it was untimely, (2) he failed to preserve this claim at the sentencing hearing and on direct appeal, (3) the sentencing guideline issue is not cognizable under § 2255, and (4) even assuming error in the guideline calculation, the Court imposed a below guideline sentence, below the bottom of the guideline range and below the guideline range if calculated without the enhancement. Id. at 1-9. Mr. Turner did not file a reply to the Government's response.

         C. The Recommended Decision

         On September 6, 2018, the Magistrate Judge issued a recommended decision in which he recommended against holding an evidentiary hearing, in favor of denying the petition, and against issuing a certificate of appealability. Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 743). The Magistrate Judge concluded that the petition was untimely. Id. at 4-5. Next, the Magistrate Judge ruled that summary dismissal was appropriate because Mr. Turner's allegations were “vague” as his claims did not “allege which judgment or judgments he challenges on the basis of alleged racial bias, nor does he allege any specific facts about the alleged consent decrees or agency oversight issues upon which he relies to support his claim.” Id. at 6. The Magistrate Judge also noted that Mr. Turner had failed to “explain how any new facts might impact the Court's criminal livelihood finding.” Id. In addition, the Magistrate Judge observed that to the extent Mr. Turner was challenging his prior convictions, his “allegations did not implicate his right to counsel in the proceedings that led to the prior convictions.” Id. Finally, the Magistrate Judge noted that Mr. Turner's challenge to the criminal livelihood enhancement was not cognizable because he failed to object to the enhancement at the sentencing hearing and failed to appeal the enhancement, because he could not demonstrate prejudice, and because misapplications of the guidelines are generally not recognized absent a miscarriage of justice. Id. at 6, n.5.

         D. The Affirmance

         Mr. Turner's objection to the Magistrate Judge's recommended decision was due by September 20, 2018. As Mr. Turner is incarcerated and subject to the so-called mailbox rule, Houston v. Lack, 487 U.S. 266, 276 (1988), the Court waited until November 8, 2018 before acting on the recommended decision. Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 752). Having received no objection from Mr. Turner and having reviewed the recommended decision, the Court accepted and affirmed the recommended decision and ordered that no certificate of appealability should issue. Id. at 1-2.

         E. The Motion for Reconsideration

         On December 3, 2018, Mr. Turner filed a motion for the Court to reconsider its order affirming the recommended decision. Mot. for Recons. Pursuant to Fed. R. of Civ. P. 59(e) Citing Fed. R. [Civ.] P. 52(b) Plain ...


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