United States v. Turner ( 2011 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Respondent,
Criminal Action No. 06-00026-01 (CKK)
V~ civil Action No. 09-00674 (CKK)
PETER R. TURNER,
Defendant/Petitioner.
MEMORANDUM OPINION
(October 17, 201 l)
Several years ago, Defendant and Petitioner Peter R. Turner ("Turner") was convicted by
a jury in this Court on one count of conspiracy to defraud the United States and one count of
bribery. Presently before the Court is Tumer’s [137]' Motion Under 28 U.S.C. § 2255 to Vacate
Set Aside, or Correct Sentence ("Motion to Vacate") and the Government’s [l 50] Opposition to
Turner’s Motion to Vacate, Set Aside, or Correct Sentence ("Opposition"). Upon a searching
review, the Court finds that the parties’ submissions, the relevant authorities, and the record as a
whole conclusively show that Tumer is not entitled to the requested relief. Accordingly, the
Court shall DENY Turner’s [l37] Motion to Vacate.
I. BACKGROUND
In 1998, Turner, a volunteer driver for the Department of Veterans Affairs Medical
Center, began a romantic relationship with Vester Mayo ("Mayo"), a nurse at the Medical Center.
Mayo, who had taken out a life insurance policy through a federally administered program,
‘ All docket references are to United States v. Turner, Crirninal Action No. 06-00026-01
(CKK) (D.D.C.).
suffered a stroke and died in December 2000. The life insurance beneficiary designation form in
her personnel file listed Turner as a co-beneficiary. Tumer filed a claim for benefits and received
$20,562.90. Shortly thereaiter, Tumer wrote a check in the amount of $I,OO() to LaTanya
Andrews ("Andrews"), a payroll technician at the Medical Center. Subsequently, evidence that a
reasonable jury could credit would show that Mayo’s signature on the beneficiary form in her
personnel file had been forged, that Andrews had access to Mayo’s personnel file containing the
for1n, and that Tumer had been seen forging Mayo’s signature on two prior occasions.
On January 31, 2006, a federal grand jury charged Tumer and Andrews with conspiracy
to defraud the United States in violation of 18 U.S.C. § 371 and bribery in violation of 18 U.S.C.
§ 20l(b). In July 2006, Turner and Andrews were tried in front of a jury in a four-day trial
presided over by the undersigned. The jury convicted Tumer on both counts. Tumer moved for
a judgment of acquittal, which the Court denied in a detailed opinion on October 24, 2006,
finding that the Government had presented ample evidence to sustain the jury’s verdict. See
Mem. Op. (Oct. 24, 2006), ECF No. [64].
Following a number of extensions, Turner’s sentencing proceedings began in earnest in
the summer of 2007. Apart from memoranda in aid of sentencing, Tumer submitted a series of
submissions pertaining to his myriad medical conditions, and sentencing proceedings were
continued while Tumer underwent diagnostic testing and inquiries were made into the Bureau of
Prison’s ability to care for Tumer. Each of Turner’s filings included medical evidence and legal
argument in an attempt to demonstrate that his age and infirmities warranted a downward
departure under §§ 5Hl.l and 5Hl .4 of the United States Sentencing Guidelines and that he
should be sentenced to a period of home detention in lieu of incarceration. At the time of his
sentencing, the record reflected that Turner suffered from the following medical conditions:
asthma requiring treatment from steroids and inhalers; sleep apnea requiring the use of a
continuous positive airway pressure device and oxygen at night; post-traumatic stress disorder
resulting in headaches and seizures; congestive heart failure; gout and degenerative joint disease
occasionally requiring treatment with narcotics; diabetes treated by medication but not fully
controlled; severe peripheral neuropathy; renal failure; temporary spells of blindness; and a
possible autoimmune disease such as lupus.
On September 7, 2007, the Court sentenced Tumer to two concurrent thirty-three month
terms of imprisonment to be followed by two years’ of supervised release. In imposing this
sentence, the Court recognized that Turner’s many medical conditions were serious, severely
limiting, and perrnanent, but nonetheless found the circumstances did not warrant the Court
exercising its discretion to grant a downward departure based upon an "extraordinary physical
impainnent" under §§ 5H1.1 and 5H1.4. On September 20, 2007, the Court ordered Tumer to
surrender to an institution designated by the Bureau of Prisons.
On September 21, 2007, Tumer appealed to the United States Court of Appeals for the
Distiict of Columbia Circuit and moved for release pending appeal. The Court of Appeals
instructed Tumer to present his motion to this Court in the first instance, which he did. On
January 28, 2008, the Court denied Tumer’s motion in a detailed opinion. See United States v.
Turner, 531 F. Supp. 2d 123 (D.D.C. 2008). Upon reviewing the considerable body of pre- and
post-sentencing medical evidence and information, the Court found that the record was in accord
with its prior understanding that Turner suffers from several chronic medical conditions requiring
continuous evaluation and medical care, but that the record did not establish that his conditions
were acute or likely to require immediate medical intervention.
On December 5, 2008, the United States Court of Appeals for the District of Columbia
Circuit issued a decision resolving Turner’s appeal. See United States v. Turner, 548 F.3d 1094(D.C. Cir. 2008). The Court of Appeals affirmed Turner’s conviction, but held that this Court
erred by applying the version of the United States Sentencing Guidelines in effect at the time of
sentencing and not the version in effect on the date that Turner’s offenses were committed.
Accordingly, the Court of Appeals remanded for purposes of resentencing.
Tumer filed his Motion to Vacate on April 4, 2009. Tumer has been represented by
various counsel throughout this case, but his Motion to Vacate is brought pro se. The
Government filed its Opposition on June 22, 2009. Thereafter, the Court and the parties
proceeded to conduct resentencing proceedings, which included the preparation of an updated
presentence investigation report, the exchange of sentencing memoranda, motions practice, and
hearings. On September l6, 2009, the Court sentenced Turner to two concurrent terms of
twenty-seven months of incarceration to be followed by two years’ of supervised release.
By September 2, 201 1, Tumer had completed his term of incarceration and moved the
Court for an early termination of his supervised release under 18 U.S.C. § 3583(e). That motion
remains pending and shall be resolved by the Court separately.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that
his sentence was imposed "in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. §
2255(a). The circumstances under which such a motion will be granted, however, are limited in
light of the premium placed on the finality of judginents and the opportunities prisoners have to
raise most of their objections during trial or on direct appeal. "[T]o obtain collateral relief a
prisoner must clear a significantly higher hurdle than would exist on direct appeal." United
States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, "unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .
grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions
of law with respect thereto." 28 U.S.C. § 2255(b). However, the decision whether or not to hold
a hearing is entrusted to the district court’s discretion, particularly where, as here, the reviewing
judge presided over the proceeding in which the petitioner claims to have been prejudiced.
United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996), cert. denied, 520 U.S. 1131(1997). "If it plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the motion."
Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 4(b).
III. DISCUSSION
Despite its brevity, Turner’s [137] Motion to Vacate rests on several grounds. The Court
addresses each ground in tum.
A. Turner ’s Ineffectz've Assistance of Counsel Claim
First, Tumer claims that his trial counsel’s performance abridged his Sixth Amendment
right to effective assistance of counse1, a right that was articulated in Strickland v. Washington,
466 U.S. 668 (1984).2 To establish a successful claim for ineffective assistance of counsel under
Strickland, a petitioner must prove both (1) "that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional noirns," and (2) "that this error caused
[him] prejudice." United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citing United
States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008)). The reviewing court must begin with a
strong presumption that counsel rendered adequate assistance and exercised reasonable
professional judgment, Cullen v. Pz'nholster, __ U.S. _, 131 S. Ct. 1388, 1403 (2011), and it is
the petitioner’s burden to show that counsel made errors "so serious" that counsel could not be
said to be functioning as the counsel guaranteed by the Sixth Amendment, Harrington v. Richter,
_ U.S. _, 131 S. Ct. 770, 787 (20l1). Even then, the petitioner must further establish
prejudice, a showing "[t]hat requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a
different result." Cullen, 131 S. Ct. at 1403 (quoting Richter, 131 S. Ct. at 791). "Even under de
novo review, the standard for judging counsel’s representation is a most deferential one,"
Richter, 131 S. Ct. at 788, and "[s]urmounting Strickland’s high bar is never an easy task,"
Padilla v. Kentucky, __ U.S. _, 130 S. Ct. 1473, 1485 (2010) (citations omitted).
Here, Tumer’s ineffective assistance of counsel claim rests on the following allegations:
Petitioner was represented or mis-represented by legal representation
assigned by the Court that was either indifferent to Petitioner’s case
and defense or unfamiliar with the proceedings in Federa1 Court. On
several occasions, Petitioner request [sic] assigned legal
representation to raise several pertinent items of defense in his case
but Counsel refused. * * * Moreover, Petitioner’s assigned legal
2 Tumer did not raise his ineffective assistance of counsel claim on direct appeal, but
there is no procedural default for failure to raise an ineffective assistance claim on direct appeal,
even where, as here, trial and appellate counsel were different. See Massaro v. United States,
538 U.S. 500, 503-04 (2003).
Counsel disregarded nearly all information provided by Petitioner.
Pet’r’s Mot. to Vacate at 4. Simply put, "vague and conclusory" allegations of this kind are
woefully inadequate to overcome the strong presumption that counsel rendered adequate
assistance and exercised reasonable professional judgment in discharging his responsibilities.
Simms v. United States, 730 F. Supp. 2d 58, 61 (D.D.C. 2010); see also United States v. Taylor,
139 F.3d 924, 923 (D.C. Cir. 1998) (noting that "[s]ummaiy disposition" of an ineffective
assistance of counsel claim "may [] be appropriate where the defendant has failed to present any
affidavits or other evidentiary support for the naked assertions contained in his motion").
The lone exception to the foregoing observation relates to Tumer’s allegation that
"although [he] had difficulty communicating with [his] assigned Attomey due to [m]edical and
educational comprehension, at no time did said Attomey provide for a ‘competency evaluation’
. . . before court-proceedings began," Pet’r’s Mot. to Vacate at 4, which at least has the benefit of
some specificity. However, the competency standard articulated by the United States Supreme
Court asks "(1) ‘whether’ the defendant has ‘a rational as well as factual understanding of the
proceedings against him’ and (2) whether the defendant ‘has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding."’ Indiana v. Ea'wards, 554
U.S. 164, 170 (2008) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam))
(emphasis omitted). The defendant bears the burden of proof to demonstrate that he lacks the
competency to stand trial. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). Here, Tumer has
adduced no facts that would suggest that there was "reasonable cause" to believe that, at the time
of trial, he was incompetent in the sense that he was "unable to understand the nature and
consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. §
4241(a). Tumer does not dispute that he had a rational and factual understanding of the
proceedings against him, and his mere allegation that he may have experienced some "difficulty"
communicating with his counsel, even if true, falls far short of suggesting that the difficulty was
so profound so as to prevent him from "consult[ing] with his lawyer with a reasonable degree of
rational understanding." Dusky, 362 U.S. at 402. lndeed, despite the considerable medical
evidence and information presented to this Court to date, there is no indication that Tumer has
ever suffered from the sort of condition that would support even a colorable claim of
incompetency. Furthermore, this Court had the opportunity to directly observe Tumer before,
during, and after trial, and has no doubt that he had a rational and factual understanding of the
proceedings against him and the ability, which he in fact exercised, to assist in his defense and
consult with his counsel with a reasonable degree of rational understanding.3 On this record,
Turner’s contention that his trial counsel’s representation of him was constitutionally inadequate
because he did not request a competency hearing on Tumer’s behalf is insufficient to override the
strong presumption that counsel rendered adequate assistance and exercised reasonable
professional judgment in discharging his responsibilities."
For the reasons set forth above, the Court shall DENY Tumer’s Motion to Vacate insofar
3 This Court has previously had the opportunity to express its "healthy skepticism" of
Turner’s self-reporting as to his conditions. See Turner, 531 F. Supp. 2d at 130.
4 Unlike the Government, the Court does not understand Tumer to be directly
challenging the efficacy of the legal assistance provided him by his appellate counsel. ln his
Motion to Vacate, Tumer mentions his appellate counsel only in the course of explaining why he
failed to raise certain issues on direct appeal. See Pet’r’s Mot. to Vacate at 4, 6. However, even
assuming, arguendo, that Tumer intended to assert such a claim in relation to his appellate
counsel, it would fail for the same reasons_namely, his vague and conclusory allegations are
patently insufficient to overcome the strong presumption that counsel rendered effective
assistance and exercised reasonable professional judgment.
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as it is predicated upon his ineffective assistance counsel claim.
B. Turner’s Competency Claim
Second, Tumer asserts a stand-alone claim that he was not competent to stand trial or
contribute to his defense (one that exists independently from his contention that his counsel’s
representation was constitutionally inadequate because counsel failed to raise such a claim at
trial), contending that he "suffered from several illnesses" that "made it almost impossible for
him to proceed in a trial and defend himself in a clear and lucid manner as well as communicate
with his attorney." Pet’r’s Mot. to Vacate at 5. However, Turner has procedurally defaulted any
such claim because he failed to raise it on direct appeal. The writ of habeas corpus is an
extraordinary remedy and "will not be allowed to do service for an appea ." Reed v. Farley, 512
U.S. 339, 354 (1994) (internal quotation marks and citation omitted). Therefore, "[w]here a
defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may
be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual
‘prejudice,’ or that he is ‘actually innocent."’ Bousley v. United States, 523 U.S. 614, 622 (1998)
(citations omitted). ln this case, Turner has not shown that "some objective [extemal] factor"
prevented him from challenging his competency on direct appeal, United States v. Lawson, 608
F. Supp. 2d 58, 62 (D.D.C. 2009), the record does not support a colorable claim of incompetency
such that might warrant a finding of actual prejudice, see supra Part III.A, and there is ample
evidence to support the jury’s determination that Tumer is in fact guilty of the offenses with
which he was charged, see Mem. Op. (Oct. 24, 2006), ECF No. [64]. Tumer instead contends,
with no meaningful measure of detail, that he failed to raise the competency issue on direct
appeal because his "legal representative refused to raise such issues in full." Pet’r’s Mot. to
Vacate at 5. True, ineffective assistance of counsel may provide "cause" for purposes of
avoiding a procedural default, see Cassea'ay v. United States, 723 F. Supp. 2d 137, 152 (D.D.C.
2010), ajj"d, No. 11-3016, 2011 WL 3903358 (D.C. Cir. Aug. 15, 2011), but Tumer has adduced
no facts that could override the strong presumption that his appellate counsel rendered adequate
assistance and exercised reasonable professional judgment in discharging his responsibilities.
See Murray v. Carrz'er, 477 U.S. 478, 488 (1986) ("So long as a defendant is represented by
counsel whose performance is not constitutionally ineffective . . . we discern no inequity in
requiring him to bear the risk of attorney error that results in a procedural default."). Under these
circumstances, the Court concludes that Turner’s Motion to Vacate is procedurally barred insofar
as he seeks to challenge his competency. See United States v. Spadaro, 675 F. Supp. 2d 36, 38
(D.D.C. 2009) (holding that petitioner’s failure to raise competency issues on direct review
meant that he "procedurally defaulted the claims that he was not competent to assist with his
defense and that he received an incomplete competency evaluation."). Altematively, this Court
had the opportunity to directly observe Tumer before, during, and after trial, and has no doubt
that he had a rational and factual understanding of the proceedings against him and the ability,
which he in fact exercised, to assist in his defense and consult with his counsel with a reasonable
degree of rational understanding. Therefore, the Court shall DENY Turner’s Motion to Vacate
insofar as it is predicated upon his competency claim.
C. Turner’s Contention that the Court Used the Incorrect Versz``on of the United
States Sentencing Guidelines in Determz``nz``ng His Original Sentence
Third, and finally, Tuner contends that the Court improperly used the version of the
United States Sentencing Guidelines that was in effect at the time of sentencing and not the
version that was in effect on the date that his offenses were committed in determining his original
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sentence. See Pet’r’s Mot. to Vacate at 7. However, this precise issue was raised and resolved
by the United States Court of Appeals for the District of Columbia Circuit in addressing Turner’s
appeal. The Court of Appeals agreed with Turner’s position and remanded for resentencing.
Since Tumer filed his Motion to Vacate, the Court has resentenced him in accordance with the
Court of Appeals’ instructions. Accordingly, this aspect of Tumer’s Motion to Vacate is moot
and shall be DENIED on that basis.
D. N0 Certificate of Appealability Shall Issue From T his Court
When the district court enters a final order resolving a petition under 28 U.S.C. § 2255
that is adverse to the petitioner, it must either "issue or deny a certificate of appealability." Rules
Goveming Section 2255 Proceedings for the United States District Courts, Rule 1 1(a). By
statute, "[a] certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right." 28 U.S.C. § 2253(0)(2). Such a showing
demands that the petitioner demonstrate that "reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further."’ Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (l983)). For the reasons set forth
above, the Court concludes that Tumer has failed to make that showing in this case, and,
accordingly, no certificate of appealability shall issue from this Court. To the extent Turner
intends to file an appeal, he must seek a Certificate of Appealability from the United States Court
of Appeals for the District of Columbia Circuit in accordance with Federal Rule of Appellate
Procedure 22.
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IV. CONCLUSION
For the reasons set forth above, the Court shall DENY Tumer’s [137] Motion to Vacate.
Furthermore, no Certificate of Appealability shall issue from this Court. To the extent Tumer
intends to file an appeal, he must seek a Certificate of Appealability from the United States Court
of Appeals for the District of Columbia Circuit in accordance with F ederal Rule of Appellate
Procedure 22. An appropriate Order accompanies this Memorandum Opinion.
Date: October 17, 2011
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