Turner v. United States

• Decision Date: 13 November 2012
• Docket Number: Nos. 11–1884,11–1885.,s. 11–1884
• Citation: 699 F.3d 578
• Parties: Bruce TURNER, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

699 F.3d 578

Bruce TURNER, Petitioner, Appellant,

v.UNITED STATES, Respondent, Appellee.

Nos. 11–1884, 11–1885.

United States Court of Appeals,First Circuit.

Heard Sept. 6, 2012.

Decided Nov. 13, 2012.

Kimberly Homan for petitioner.

John A. Capin, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for respondent.

Before LYNCH, Chief Judge, BOUDIN and THOMPSON, Circuit Judges.

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, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and this resulted in a sentence above the ordinary statutory maximum of ten years for a conviction under § 922(g). See18 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).

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.”

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 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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 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 conviction ¹ 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, 552 U.S. 891, 128 S.Ct. 322, 169 L.Ed.2d 153 (2007).

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 intimidation of a defense witness by the FBI. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 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...