United States District Court, D. Maine
ORDER ON MOTION FOR RECONSIDERATION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
Charges, Conviction and Sentence
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.
Christian Turner's Habeas Corpus Petition and
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
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.
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
The Recommended Decision
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
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.
The Motion for Reconsideration
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 ...