Turner v. United States ( 2022 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 16-61155-CV-COOKE (95-06031-CR-COOKE) TRACY TURNER, Movant vs. UNITED STATES OF AMERICA, Respondent. ___________________________________/ ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION AND ISSUING CERTIFICATE OF APPEALABILITY THIS MATTER was referred to the Honorable Lisette M. Reid, United States Magistrate Judge, pursuant to Administrative Order 2003-19 of this Court, for a ruling on all pre-trial, non-dispositive matters and for a Report and Recommendation on any dispositive matters. On November 4, 2020, Judge Reid issued a Report and Recommendation (ECF No. 30) recommending: (1) the stay of this case pending Beckles v. United States, 137 S. Ct. 886 (2017) be lifted; (2) that Movant’s Motion to Vacate Sentence be dismissed as time-barred; (3) in the alternative, that Movant’s Motion to Vacate Sentence be denied because Movant’s sentence is unaffected by the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), and Movant’s career offender challenge is not cognizable on habeas corpus review; and (4) that a certificate of appealability be issued as to whether sentences imposed under the then mandatory pre-Booker sentencing guidelines are subject to a vagueness challenge and the precedential weight of published opinions in the context of applications for second or successive motions to vacate. I have considered Judge Reid’s Report and Recommendation, and the objections thereto, and have made a de novo review of the record. Upon doing so, I find Judge Reid’s Report and Recommendation to be clear, cogent, and compelling. It is, therefore, ORDERED and ADJUDGED that Judge Reid’s Report and Recommendation (ECF No. 30) is AFFIRMED and ADOPTED. Accordingly, it is ORDERED and ADJUDGED as follows: a) the stay in this case is LIFTED; and b) Movant's Motion to Vacate Sentence (ECF No. 1) is DISMISSED as time-barred and, in the alternative, the Motion to Vacate Sentence is DENIED because Movant’s sentence is unaffected by the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), and Movant’s career offender challenge is not cognizable on habeas corpus review. It is FURTHER ORDERED and ADJUDGED that, pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, a Certificate of Appealability shall issue as to: 1) whether sentences imposed under the then mandatory pre-Booker sentencing guidelines are subject to a vagueness challenge; and 2) the precedential weight of published opinions in the context of applications for second or successive motions to vacate. As to these issues, I find that “jurists of reason could disagree with the district court's resolution of [Movant’s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 326 (2003); accord Lott v. Attorney Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010) (explaining that a “petitioner need not show he will ultimately succeed on appeal” in order to warrant a certificate of appealability). DONE and ORDERED in Chambers at Miami, Florida, this 28th day of April 2022. Moros 9 Cork MARCIA G. COOKE United States District Judge Copies furnished to: Lisette M. Reid, U.S. Magistrate Judge All counsel of record Tracy Turner 30562-004 Estill Federal Correctional Institution Inmate Mail/ Parcels Post Office Box 699 Estill, SC 29918 Page 2 of 2