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United States v. Turner

United States District Court, E.D. Virginia, Alexandria Division

August 8, 2017

UNITED STATES OF AMERICA
v.
DELANTE TURNER, Defendant.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on Petitioner Delante Turner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. 2255 [Dkt. 128]. Turner contends that he received ineffective assistance of counsel due to his attorney's failure to advise him of certain legal arguments before he pled guilty. For the following reasons, the Court will deny Turner's Motion.

         I. Background

         On March 3, 2016, Turner was indicted on charges of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951, fifteen separate counts of Hobbs Act robbery in violation of 18 U.S.C. §§ 2 and 1951, fifteen separate counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The charges stemmed from a rash of armed robberies of small commercial establishments.

         On April 5, 2016, Turner pled guilty to Counts 20 and 32 of the indictment - two counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 2. On July 7, 2016, the Court sentenced Turner to 84 months of incarceration on Count 20 and 300 months of incarceration on Count 32 to run consecutively. Turner filed the instant 28 U.S.C. § 2255 Petition on December 28, 2016, claiming that he received ineffective assistance of counsel.

         II. Legal Standard

         Under 28 U.S.C. § 2255, a prisoner in federal custody may collaterally attack his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27 (1962). The petitioner bears the burden of proof, which must be established by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A petitioner who asserts ineffective assistance of counsel must meet a two-pronged test to succeed. He or she must show that: (1) the performance of counsel fell below an objective standard of reasonableness, based upon prevailing professional norms; and (2) as a result, there was prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To satisfy the performance prong, the petitioner must demonstrate that the errors were “so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. To satisfy the prejudice prong, the petitioner must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. When a petitioner alleges ineffective assistance related to the entry of a guilty plea, the district court applies a slightly modified prejudice standard, requiring the petitioner to demonstrate that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         III. Analysis

         As an initial matter, much of the Petition under review eschews any mention of ineffective assistance of counsel and instead argues directly that Turner's conviction was legally deficient. To the extent Turner makes these arguments directly, his claims are foreclosed by his unconditional guilty plea. “When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of the plea.” United States v. Bundy, 392 F.3d 641, 644 (4th Cir.2004); see also United States v. Martinez-Martinez, 69 F.3d 1215, 1224 (1st Cir. 1995) (“a valid guilty plea waives all challenges to the factual and legal foundations of the charges”). Turner chose not to contest the charges brought against him and waived his right to appeal his conviction. The law is clear that Turner may not now directly challenge the constitutionality of the charges to which he pled guilty. See, e.g., United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010), as amended (Feb. 9, 2010). This rule applies fully to the arguments Turner raises here. See United States v. Wheeler, 857 F.3d 742, 744 (7th Cir. 2017); Davila v. United States, 843 F.3d 729, 731-32 (7th Cir. 2016).

         Turner's guilty plea, however, does not foreclose a collateral attack on the “voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not ‘within the range of competence demanded of attorneys in criminal cases.'” Blackledge v. Perry, 417 U.S. 21, 30 (1974) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The Court therefore proceeds to assess whether Turner's counsel provided ineffective assistance in failing to advise Turner of certain legal arguments he believes should have been made in his case.[1]

         By way of background, 18 U.S.C. § 924(c)(1)(A) - the statute under which Turner pled guilty - makes it a criminal offense to use or carry a firearm “during and in relation to any crime of violence.” An offense may qualify as a “crime of violence” under § 924(c)(1)(A) pursuant to either (1) the elements clause of § 924(c)(3)(A) because it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ” or (2) the residual clause of § 924(c)(3)(B) because “by its nature, [the crime] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

         Here, Turner's predicate “crime of violence” was Hobbs Act robbery in violation of 18 U.S.C. § 1951. This statute provides, in relevant part, that “[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a).[2]

         Turner argues that his attorney rendered ineffective assistance by failing to inform him that (1) Hobbs Act robbery is not a “crime of violence” that can serve as a predicate offense under the elements clause of 18 U.S.C. § 924(c)(3)(A), and (2) Turner's convictions cannot be sustained under § 924(c)(3)(B), the statute's residual clause, because that clause is ...


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