Turner v. United States

United States Court of Appeals
For the First Circuit
Nos. 11-1884, 11-1885
BRUCE TURNER,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Kimberly Homan for petitioner.
John A. Capin, Assistant U.S. Attorney, with whom Carmen M.
Ortiz, United States Attorney, was on brief for respondent.
November 13, 2012
LYNCH, Chief Judge. A federal prisoner, Bruce Turner,
appeals from the district court's June 28, 2011, denial of his 28
U.S.C. § 2255 petition, which was largely focused on a variety of
ineffective assistance of counsel claims. United States v. Turner,
793 F. Supp. 2d 495 (D. Mass. 2011). He also appeals from the
denial, as untimely, of his second motion to amend the petition
filed on May 13, 2010. Turner asserts on appeal that the second
motion to amend was timely and that he should have been allowed to
pursue a claim that he was improperly subject to sentencing as an
armed career criminal under 18 U.S.C. § 924(e), because one prior
offense was not a predicate in light of Johnson v. United States,
130 S. Ct. 1265 (2010), and this resulted in a sentence above the
ordinary statutory maximum of ten years for a conviction under
§ 922(g). See 18 U.S.C. § 924(a)(2) (ten-year maximum sentence for
one convicted of violating 18 U.S.C. § 922(g)). We affirm both
decisions.
I.
A. Background
On January 23, 2004, a jury convicted petitioner on one
count of unlawfully possessing two firearms, an Intratec 9mm Luger
semiautomatic pistol ("Tech 9") and a Llama .32 caliber
semiautomatic pistol ("Llama .32"), in violation of 18 U.S.C.
§ 922(g)(1).
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At trial, the government presented considerable evidence
that Turner possessed the Tech 9 and Llama .32 pistols at various
points between December 2002 and January 24, 2004. One witness,
Thomas Casey, testified that in December of 2002, Turner arrived at
Casey's house with a gun resembling the Llama .32. After Casey
broke a spring in the firearm when trying to pull out the clip,
Turner brought the firearm upstairs to John Trimarchi, Casey's
roommate, to fix. Trimarchi fixed the firearm and Turner then
fired the weapon into the floor on the second level of the house.
A ballistician testified that a projectile recovered from Casey's
house, the house in which Turner fired the gun, was fired from the
Llama .32 specified in the indictment. Trimarchi also testified at
trial that Turner fired a gun resembling the Llama .32 in Casey's
home. The government also introduced recordings collected by
Trimarchi, who was cooperating with the FBI. Two recordings
corroborated Casey's and Trimarchi's testimony about the December
2002 shooting. In one recording, Turner said, "I shot him in the
house," in response to Trimarchi's statement that Turner had
"bragging rights for shooting guns with Tom . . . Casey," and in
the other recording, Turner said, "[g]ood thing no one was
downstairs," in response to Trimarchi saying, "I can't believe.
You could've shot someone in the head. You got a problem with my
rug, right? That's what it was."
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Another government witness, Ronald Smith, testified that
in early 2003, Turner left a brown bag at Smith's home, which Smith
discovered contained a firearm. Six to ten days later, Turner had
a phone conversation with Smith in which Turner said he was going
to come by and pick up the "you know what, without saying it."
That day, Trimarchi came to Smith's house to pick up a box in which
Smith had placed the brown bag. Trimarchi testified that before
going to Smith's house, he stopped at Turner's home. There, Turner
told Trimarchi there were guns at Smith's house that petitioner
wanted picked up. Upon arriving at Smith's house, Trimarchi took
the box and gave it to Agent Todd Richards. The box contained the
Llama .32 firearm and the Tech 9.
Casey and Trimarchi testified as to how Turner had gained
possession of the Tech 9. Sometime in 2002, a friend gave Casey a
Tech 9 to store in his house. Casey testified that he stored the
gun in his bedroom closet and noticed it was missing sometime in
2003. Trimarchi testified that on one occasion, when petitioner
and Trimarchi were alone, Trimarchi showed petitioner the firearm
in Casey's closet. Casey and Trimarchi both testified that Turner
frequently visited their home. The next time Trimarchi saw the
Tech 9 was when he picked up the box from Smith's house.
A number of days after Trimarchi picked up the box from
Smith's house, Turner spoke with Trimarchi and mentioned his prior
possession of a .32 caliber firearm. Apparently referring to an
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ongoing dispute with another man over money, Turner explained, I
need that hand gun . . . I want it for tomorrow . . . That's why I
had the .32 [last December]. Can you have it, the .32 by
tomorrow?"
Based on abundant evidence, the jury convicted. The
court sentenced Turner to 235 months' imprisonment pursuant to the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on
Turner's prior convictions.
B. Appellate Procedural History
Turner appealed his conviction and sentence, arguing
that: (1) the district court should have treated the Sentencing
Guidelines as advisory; (2) the district court erred in sentencing
Turner under the ACCA because the ACCA predicate offenses must be
alleged in the indictment and found by a jury or admitted; and (3)
he was denied effective assistance of counsel. On March 1, 2006,
the panel allowed Turner to preserve the ACCA claim but noted that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), remained
binding precedent and foreclosed his claim, affirmed the
conviction, did not address the ineffective assistance of counsel
claim, vacated the sentence in light of Booker v. United States,
543 U.S. 220 (2005), and remanded for resentencing. United States
v. Turner, No. 04-2565 (1st Cir. Mar. 1, 2006).
At resentencing on remand, on July 17, 2006, the district
court resentenced Turner to 211 months' imprisonment. Petitioner
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was sentenced under the ACCA based on four predicate state
convictions: (1) a 1990 assault and battery with a dangerous weapon
("ABDW") conviction in Salem District Court; (2) a 1994 ABDW
conviction1 in Middlesex Superior Court; (3) a 1999 simple assault
and battery conviction2 in Malden District Court; and (4) a 2001
conviction in Malden District Court for possession of a class B
substance with intent to distribute.
That day, Turner filed another appeal reasserting his
argument that ACCA predicate offenses must be alleged in the
indictment and found by a jury, and arguing that the sentence was
unreasonable. He did not argue that United States v. Mangos, 134
F.3d 460 (1st Cir. 1998), was in error. We allowed the
government's motion for summary disposition. United States v.
Turner, No. 06-2207 (1st Cir. Apr. 18, 2007). The Supreme Court
denied Turner's petition for a writ of certiorari on October 1,
2007. Turner v. United States, 128 S. Ct. 322 (2007).
1
Turner was originally convicted in 1992, but that verdict
was set aside and he was convicted again in 1994.
2
Because Massachusetts assault and battery offenses are
charged with "did assault and beat" language, Mass. Gen. Laws ch.
277, § 79, and at the time of Turner's sentencing, such language
was deemed to indicate a harmful battery, which qualifies as a
violent felony, United States v. Mangos, 134 F.3d 460, 464 (1st
Cir. 1998), the district court at resentencing apparently adhered
to Mangos.
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C. Turner's 28 U.S.C. § 2255 Motion and Two Later Motions to
Amend
Petitioner timely filed a Motion to Vacate, Set Aside, or
Correct a Sentence pursuant to 28 U.S.C. § 2255, on September 29,
2008, presenting primarily ineffective assistance of counsel
claims, and also a claim that his sentence under the ACCA was
improper because certain of the prior underlying state convictions
used as predicate offenses were procured in violation of the
Constitution.
Post-conviction petitions are subject to statutes of
limitations. The particular limitation for the initial § 2255
petition is 28 U.S.C. § 2255(f)(1), which requires that such a
petition be filed within one year of the conviction becoming final.
See In re Smith, 436 F.3d 9, 10 (1st Cir. 2006) (decision final
when petition for certiorari is denied). Petitioner asserted that
his conviction was obtained as a result of the violation of his
Sixth Amendment right to the effective assistance of trial counsel,
in that defense counsel: (1) elicited highly prejudicial evidence
that petitioner sold cocaine; (2) failed to introduce tape recorded
conversations inconsistent with the government's theory; (3) failed
to seek discovery of records of a key FBI cooperating witness's
prior work for the FBI and failed to adequately investigate
government witnesses; (4) failed to investigate and call certain
witnesses; and (5) failed to follow up on threats to and
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intimidation of a defense witness by the FBI. See generally
Strickland v. Washington, 466 U.S. 668 (1984).
Fifteen months later, on January 13, 2010, petitioner
filed a memorandum in support of the motion. Turner expanded upon
the assertions made in his original motion and also attempted to
add new theories, that his trial counsel's cross-examinations of
Smith and Trimarchi were ineffective.
The same day, petitioner filed a motion to amend his
original § 2255 motion to add a claim that trial counsel was also
ineffective by failing to object to certain jury instructions.3
That is not the subject of this appeal.
On May 13, 2010, approximately nineteen months after the
one-year period had elapsed under § 2255(f)(1), petitioner filed a
second motion to amend his § 2255 motion. Turner sought to add
another variant on his ineffective assistance claim based on
resentencing counsel's failure to object to the use of the assault
and battery and ABDW convictions as violent felonies under the
ACCA. The motion also asserted, without elaboration, that his ACCA
sentence violated due process. The government filed an objection
in the district court to the second motion to amend. Turner did
not file a response to the government's objection. The district
3
The district court allowed the motion to amend on March 2,
2010. It decided the claim was untimely in its June 28, 2011
opinion. Petitioner is not pursuing the jury instruction claim on
appeal.
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court denied the second motion to amend, in an electronic order on
June 28, 2010, as untimely.
On appeal, Turner argues this second motion to amend also
added a different claim that the use of those convictions violated
the ACCA and Turner's due process rights in light of the Supreme
Court's March 2, 2010 decision in Johnson because Johnson
retroactively applied and dictated a different outcome. The
government contests this characterization of the second motion to
amend and says no such claim was presented to the district court.
In a memorandum and opinion dated June 28, 2011, the
district court denied petitioner's original § 2255 motion.
Bypassing the question of the level of counsel's performance, the
district court, in a detailed analysis, concluded that "[b]ecause
the evidentiary impact of trial counsel's errors did not affect the
outcome of the petitioner's case, he cannot meet the high
[prejudice] bar for proving ineffective assistance of counsel." In
other words, "the petitioner cannot demonstrate a reasonable
probability that even if he had had the benefit of an able defense,
the outcome in his case would have been any different."
As to the claim in his original petition that his
sentencing under the ACCA was invalid due to deficiencies in one of
the state predicate offenses, the court agreed that one vacated
state sentence could no longer be counted, but concluded there were
three other qualifying predicates. The court rejected the attack
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on the ABDW conviction obtained in Salem District Court,4 and so
concluded there was no error in the ACCA sentence.5
II.
There are essentially three different claims of error by
the district court on appeal. The argument is the district court
committed reversible error in the: (1) rejection of those claims of
the ineffective assistance of counsel, which were timely filed, on
the merits; (2) rejection of the ineffective assistance claim based
on the Smith cross-examination as untimely because it did not
relate back; and (3) rejection of the second motion to amend, as
untimely.
A. Rejection of Timely Filed Ineffective Assistance of
Counsel Claims
Petitioner argues that the district court erred in
concluding he did not establish the requisite prejudice and that it
failed to consider the cumulative effect of the alleged errors. We
4
Turner does not now raise that issue on appeal.
5
On August 1, 2011, the district court allowed petitioner's
request for a certificate of appealability on the issues of: (1)
the timeliness of the newly asserted claims; and (2) the challenge
to the ACCA predicate offense of the Salem District Court ABDW
conviction (which is no longer being challenged). On December 23,
2011, this court granted an expanded certificate of appealability
to permit Turner to appeal "each of the issues addressed in the
district court's judgment," "[b]ecause there may be some logical
relatedness between the claims certified for appeal by the district
court and the other claims raised by the petitioner." This appeal
followed.
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affirm largely based on the district court's opinion and add
several comments.
We review the district court's legal conclusions de novo
and its findings of fact for clear error. Ruiz v. United States,
339 F.3d 39, 42 (1st Cir. 2003). Since both components of the
inquiry "are mixed questions of law and fact," United States v.
Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland, 466
U.S. at 698), "[t]he standard of review applied 'depends, in the
last analysis, on the extent to which a particular question is
fact-dominated or law-dominated.'" Id. (quoting Dugas v. Coplan,
506 F.3d 1, 8 (1st Cir. 2007)). The district court engaged in a
careful and close analysis of the trial evidence and the evidence
and arguments Turner alleges his counsel overlooked. "Given the
fact-dominated nature of the prejudice inquiry . . . here, we
review the district court's decision on prejudice for clear error."
Dugas, 506 F.3d at 8.6
To succeed on his Strickland claim, Turner must establish
both that counsel's representation fell below an objective standard
of reasonableness and that there exists a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. United States v. De La Cruz,
6
Were we to address whether counsel's performance fell below
an objective standard of reasonableness, our review would be de
novo because the district court did not address the question.
However, we need not reach the reasonableness prong.
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514 F.3d 121, 140 (1st Cir. 2008) (citing Strickland, 466 U.S. at
688). "A petitioner bears a very heavy burden on an ineffective
assistance claim." Lema v. United States, 987 F.2d 48, 51 (1st
Cir. 1993).
The district court permissibly skipped the first part of
the analysis and instead focused on the prejudice prong. See
Strickland, 466 U.S. at 697 ("[T]here is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the inquiry if
the defendant makes an insufficient showing on one."). See also
González-Soberal v. United States, 244 F.3d 273, 277-78 (1st Cir.
2001).
"A reasonable probability is one 'sufficient to undermine
confidence in the outcome.'" Id. at 278 (quoting Strickland, 466
U.S. at 694). Furthermore, "it is not enough to show that the
errors had 'some conceivable effect on the outcome.'" Id. (quoting
Strickland, 466 U.S. at 693). "In weighing the prejudicial effect
of counsel's errors, we must consider the totality of the evidence
before the judge or jury." Dugas, 506 F.3d at 9 (quoting Stephens
v. Hall, 294 F.3d 210, 218 (1st Cir. 2002)). Where, as here, a
petitioner asserts that counsel failed to introduce evidence or
challenge the credibility of government witnesses on cross-
examination, we consider three factors: "first, the strength of the
prosecution's case; second, the effectiveness of the defense that
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was presented at trial; third, the potential value of the new
evidence and new avenues for cross-examination 'in undermining the
credibility of the government witnesses' testimony.'" Id. (quoting
Gonzáles-Soberal, 244 F.3d at 278).
After examining the record and the district court's
opinion, we conclude that the court did not commit error, much less
clear error. Indeed, we agree with its analysis for the reasons
given in its opinion as to why Strickland prejudice was not shown,
especially given the government's very strong evidence of guilt.
There is no support for the argument that the court failed to
consider the cumulative effect of the alleged errors.
B. Rejection of the Timeliness of the Ineffective Assistance
of Counsel Smith Cross-Examination Claim
Over 15 months after the one-year limitations period had
run under § 2255(f)(1), Turner filed his memorandum of law in which
he asserted additional ineffective assistance of counsel claims
that did not appear in his timely filed motion. One of these
claims, now pursued on appeal, was that Turner's trial counsel
erred in not asking Smith about prior statements he made to the FBI
during the investigation that were inconsistent with his trial
testimony. The district court held that this claim was untimely
because it did not relate back to the claims in the timely filed
petition. The court stated, "[t]he only reference the petition
makes to cross examination concerns the elicitation of prejudicial
testimony regarding petitioner's illegal drug activities during
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trial counsel's cross examination of Smith." The allegation in the
timely filed petition is "fundamentally different in type from the
claim that trial counsel's cross examinations of government
witnesses was, in general, not effective." Turner asks us to
reverse the court's decision. We decline the request.
Our review is "only for abuse of discretion." United
States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005). Under Fed. R.
Civ. P. 15(c)(2), "otherwise untimely pleading amendments . . .
'relate back' to the date of the timely-filed original pleading
provided the claim asserted in the amended plea 'arose out of the
conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading.'" Ciampi, 419 F.3d at 23(emphasis omitted) (quoting Fed. R. Civ. P. 15(c)(2)). The
relation back provision in habeas petitions is strictly construed.
Id. Thus, "amended habeas corpus claims generally must arise from
the 'same core facts,' and not depend upon events which are
separate both in time and type from the events upon which the
original claims depended." Id. at 24 (quoting Mayle v. Felix, 545
U.S. 644, 657 (2005)). The standard cannot be satisfied "merely by
raising some type of ineffective assistance in the original
petition, and then amending the petition to assert another
ineffective assistance claim based upon an entirely distinct type
of attorney misfeasance." Id.-14-
Again, we agree with the district court's analysis;
perforce, there was no abuse of discretion.
C. Rejection of the Second Motion to Amend on Timeliness
Grounds
The standard of review was just stated above.
On appeal, Turner does not challenge the finding of
untimeliness of the ineffective assistance of sentencing counsel
claim asserted in his second motion to amend. So, if that was the
claim he did assert, the claim did not relate back and affirmance
is required. In any event, the court was correct to find that the
claim did not relate back.
Rather, on appeal, he characterizes the second motion to
amend as having pled a second component, an attack on his ACCA
sentence based on an argument that the new Supreme Court decision
in Johnson v. United States, 130 S. Ct. 1265 (2010), was
retroactive and required a finding in his case that his state
assault and battery conviction was not a predicate offense. If
such a claim were indeed pled, it would be subject to a different
provision of the statute of limitations and its timeliness would
not turn on the relation back doctrine of Fed. R. Civ. P. 15.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"),
a § 2255 petition must be filed within one year from "the date on
which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court
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and made retroactively applicable to cases on collateral review."
28 U.S.C. § 2255(f)(3).
On appeal, Turner argues that he presented to the trial
court such a § 2255(f)(3) claim. He says he presented a claim that
the Supreme Court's decision in Johnson announced a new substantive
rule in interpreting the meaning of "physical force" in the
definition of "violent felony" under the ACCA and that, as a result
of that rule, Massachusetts assault and battery, which encompasses
violent and non-violent types, is no longer a categorical crime of
violence and he may take advantage of this new rule.7 Thus,
without additional Shepard materials, Shepard v. United States, 544
U.S. 13 (2005), establishing that his simple assault and battery
conviction was for a harmful battery, fewer than three predicate
offenses exist,8 and thus he was improperly subject to an enhanced
sentence under the ACCA. Because he filed the second motion to
amend approximately three months after the Johnson decision, the
7
In a footnote in his brief, Turner asserts that the same
logic should apply to his Massachusetts convictions for ABDW.
Since he filed his brief, this court has held that a conviction for
Massachusetts ABDW categorically qualifies as a predicate offense
under 18 U.S.C. § 924(e)(2)(B)(ii). United States v. Hart, 674
F.3d 33, 44 (1st Cir. 2012), cert. denied, 80 U.S.L.W. 3165 (U.S.
Oct. 1, 2012) (No. 11-10863).
8
After the district court concluded that a vacated drug
conviction could no longer serve as a predicate offense, only the
minimum of three predicate offenses remain, including the assault
and battery from Malden District Court. See 18 U.S.C. § 924(e)(1)
(stating three prior convictions required). The government does
not contest that only three predicates remain.
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amendment, he argues on appeal, was timely under 28 U.S.C.
§ 2255(f)(3).
"It is black-letter law that arguments not presented to
the trial court are, with rare exceptions, forfeit[ed] on appeal."
In re Redondo Constr. Corp., 678 F.3d 115, 121 (1st Cir. 2012).
The government contends that Turner forfeited the argument by not
presenting it to the district court nor alerting the court that he
was presenting not only an ineffective assistance of counsel claim,
but also an independent § 2255(f)(3) claim asserting that Johnson
was retroactive.
We agree that the second motion to amend did not raise
this independent Johnson theory and the claim is forfeited.
Indeed, petitioner did not raise such a claim, even after the
government asserted that the second motion to amend was untimely.
His second motion to amend was less than three pages long, and
featured the new ground for the ineffective assistance claim and a
general claim that use of the prior assault and battery and ABDW
charges violated due process. The motion expressly referred to
Fed. R. Civ. P. 15(a), which would not be applicable to an
independent Johnson claim he now claims he asserted in the trial
court. The motion also did not say or argue that Johnson was
retroactively applicable on collateral review. Nor did it state or
argue that Johnson announced a new rule which it sought to apply
independently of any ineffective assistance theory. Instead,
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Turner merely cited to Johnson in the course of stating that his
resentencing counsel on remand "was ineffective for his failure to
raise [the claim that the assault and battery conviction was not a
violent felony]." The second motion to amend devoted most of its
wording to asserting an ineffective assistance of counsel claim and
mentioned the Johnson case only in that context.
In opposition, the government objected to the amendment
on the ground that it was untimely. The government argued that the
ineffective assistance claim did not relate back to the original
petition and that Johnson could not affect Turner's sentence
because it was not retroactive. Turner did not file a reply to the
government's opposition. And, Turner did not say, after the
government raised untimeliness,9 that his claim was governed by
§ 2255(f)(3).
The district court's denial of the second motion to amend
simply states that it was "[d]enied as untimely." The second
motion to amend constituted yet another attempted addition to the
ineffective assistance claims asserted in the original petition.
9
Statutes of limitations in the habeas context are
affirmative defenses. Libby v. Magnusson, 177 F.3d 43, 49 (1st
Cir. 1999) ("In most settings, litigants invoke the statute of
limitations as an affirmative defense . . . and this principle
functions much the same way in habeas corpus jurisprudence."). The
government argued the claims in the second motion to amend were
untimely and after the district court denied leave to amend because
of untimeliness. Petitioner did not, at any point, make an
argument that he was asserting a retroactive Johnson claim that was
governed by § 2255(f)(3) and therefore timely.
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If petitioner intended otherwise, he neither filed a motion to
reconsider nor anything else to clarify to the district court that
he was making a separate substantive Johnson claim governed by a
different limitations period, specifically by § 2255(f)(3).
The limitations periods in AEDPA express a clear
Congressional intent to cabin the time for filing of post-
conviction remedies. See, e.g., Duncan v. Walker, 533 U.S. 167,
178 (2001) (AEDPA's purpose is to further finality of convictions);
United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000)
(noting the "intent of Congress that claims under 28 U.S.C. § 2255be advanced within one year after a judgment of conviction becomes
final" (quoting United States v. Duffus, 174 F.3d 333, 337 (3d Cir.
1999)) (internal quotation mark omitted)); United States v. Brooks,
230 F.3d 643, 649 (3d Cir. 2000) (observing Congress's intent in
amending § 2255 was "to place limits on federal collateral review"
(quoting Triestman v. United States, 124 F.3d 361, 376 (2d Cir.
1997)) (internal quotation mark omitted)).
The strictness on timing under § 2255 requires
petitioners to be clear in the district court when they are relying
on the provisions of 28 U.S.C. § 2255(f)(3) and making an
independent claim. Cf. Ramos-Martínez v. United States, 638 F.3d
315, 325 (1st Cir. 2011) ("A habeas petitioner has the burden of
adducing facts sufficient to show both that his petition should be
treated as timely and that he is entitled to relief."). Such
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claims must be made in the district court and not made and
developed for the first time on appeal. This is particularly
important in light of the Congressional intent to cabin such
claims. Fed. R. Civ. P. 15's relation back provision must be
construed strictly in § 2255 cases, in light of "Congress' decision
to expedite collateral attacks by placing stringent time
restrictions on [them]." Ciampi, 419 F.3d at 23 (alteration in
original) (quoting Mayle, 545 U.S. at 657) (internal quotation
marks omitted). So too here. We conclude that the claim now
sought to be raised here was not raised in the district court.
Although we have no occasion to decide the Johnson issue,
it may be useful to emphasize that the analysis of such a claim is
by no means straightforward. The Supreme Court has not yet held
that Johnson is retroactive and the government has independently
argued that the claim is procedurally defaulted. This is not a
case in which the application of time limits threatens any obvious
injustice.
We affirm the denial of relief under § 2255.
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