FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 21, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6081
(D.C. Nos. 5:14-CV-01107-HE and
ERIC EUGENE TURNER, 5:11-CR-00310-HE-1)
(W.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
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Eric Eugene Turner, a federal prisoner proceeding pro se, seeks to appeal from the
district court’s denial of his 28 U.S.C. § 2255 motion for habeas relief from his sentence.
Turner requests a certificate of appealability (“COA”) and leave to proceed in forma
pauperis (“IFP”) on appeal. For the reasons stated below, we DENY his request for a
COA, deny his motion to proceed IFP, deny his request for the appointment of counsel on
appeal, and DISMISS this matter.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
In 2014, Turner pleaded guilty to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Because he qualified as an armed-career
offender under § 924(e), he was sentenced to serve 180 months of imprisonment, the
mandatory minimum. He qualified as an armed-career criminal because he had three or
more earlier convictions for “serious drug offenses” as defined by 18 U.S.C. § 924(e)(2).
On direct appeal, Turner had challenged his enhanced sentence under the ACCA,
contending that his drug convictions should not count separately because—in his view—
they were really one criminal episode. We rejected this argument in United States v.
Turner, 508 F. App’x 763 (10th Cir.) (unpublished), cert. denied, 134 S. Ct. 355 (2013).
After the Supreme Court denied certiorari, Turner filed a pro se motion seeking
habeas relief under 28 U.S.C. § 2255 in the United States District Court for the Western
District of Oklahoma. The district court denied his motion for habeas relief. It also denied
his request for a COA because it concluded that Turner did not make “a substantial
showing of the denial of a constitutional right.” R. vol. I at 73 (quoting 28 U.S.C.
§ 2253(c)(2)). In addition, it denied Turner’s request to stay the case pending the
Supreme Court’s decision in Johnson v. United States, 134 S. Ct. 1871 (2014). Finally, it
denied his request for leave to appeal in forma pauperis. Turner timely appealed.1
Now, in his Application for a Certificate of Appealability, Turner raises three issues:
(1) that the district court abused its discretion by refusing to stay his case pending the
1
Because Turner proceeds pro se, we review his pleadings and filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Lewis v. C.I.R., 523 F.3d 1272,
1273 n.2 (10th Cir. 2008).
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Supreme Court’s decision in Johnson; (2) that the district court committed clear error and
abused its discretion at sentencing by imposing the enhanced sentence despite the
government’s not having provided “Shepard documents”; and (3) that his trial and
appellate counsel provided ineffective assistance of counsel for failing to object at
sentencing, or to raise on direct review, that the government never established its burden
of proof to enhance his sentence under the Armed Career Criminal Act (“ACCA”). We
deny his request for a COA.
II. DISCUSSION
We must address the jurisdictional prerequisite of whether to grant Turner a COA on
his claims before we can reach the merits. 28 U.S.C. § 2253(c)(1)(B); United States v.
Tony, 637 F.3d 1153, 1157 (10th Cir. 2011). We will issue a COA only “if the [movant]
has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). A
movant can satisfy this standard by demonstrating that “reasonable jurists could debate
whether . . . the [§ 2255 motion] should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.” Tony,
637 F.3d at 1157 (omission in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). We now turn to Turner’s arguments.
A. Johnson Claim
Turner argues that the district court abused its discretion by denying his request to
stay his habeas motion pending the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (2015). Ultimately, Johnson held that the residual clause of 18
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U.S.C. § 924(e)(3)(A) is unconstitutionally vague. Id. at 2563; see also § 924(e)(2). The
district court denied Turner’s request because the provision at issue in Johnson, 18
U.S.C. § 924(e)(2)(B)(ii), “is not pertinent here.” R. vol. I at 73. We agree. Turner was
convicted under § 924(e)(1) based on three earlier convictions for “serious drug
offense[s]” under § 924(e)(2)(A). The district court was correct that the Supreme Court’s
decision in Johnson addressed an issue not relevant to Turner’s conviction. Thus, Turner
has failed to make a substantial showing that he was denied a constitutional right and we
deny him a COA on this claim.
B. Shepard Documents
Turner contends that the district erred by sentencing him under the ACCA without
requiring that the government submit “Shepard documents”—referencing Shepard v.
United States, 544 U.S. 13 (2005)—to prove that his earlier drug convictions met the
requirements for “serious drug offenses” as defined under § 924(e)(2)(A). Here, we note
that Turner has provided us nothing even suggesting that the state drug statute had
subparts—one qualifying as a “serious drug offense” (drug trafficking with a maximum
sentence of five years or more), and another that did not qualify (drug trafficking with a
maximum sentence less than five years, or drug possession).
Turner neither objected at his sentencing on this ground nor pursued it on direct
appeal. Accordingly, he is procedurally barred from raising the issue in his application
for a COA. See, e.g., Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (refusing to
consider an argument in a COA application that was not raised in the district court);
United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) (stating that under
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procedural default principles, § 2255 motions “are not available to test the legality of
matters which should have been raised on direct appeal.” (citing United States v. Frady,
456 U.S. 152 (1982))).
In addition, he fails to recognize the importance of the PSR on his present claim. In
Turner’s PSR, we see four drug trafficking convictions with specified conduct: (1) on
October 14, 2003, he was sentenced in Oklahoma state court to 20 years of
imprisonment, the remainder suspended on August 27, 2009—“on July 31, 2002, the
defendant sold 0.8 grams of crack cocaine valued at $80.00 to a confidential informant”;
(2) the same day, he received the same sentence—“on July 31, 2002, the defendant sold
1.7 grams of crack cocaine valued at $100.00 to a confidential informant”; (3) that same
day he received the same sentence—“on July 8, 2002, the defendant sold $40.00 worth of
crack cocaine to a confidential informant”; and (4) that same day he received the same
sentence—“on September 9, 2002, the defendant sold crack cocaine valued at $60.00 to a
confidential informant.” R. vol. I at 43–46.
We note that Turner did not object to the facts contained in the PSR’s recitation of his
drug trafficking felonies. Those facts—showing distribution, not possession, and showing
a maximum sentence greater than five years—establish the appropriateness of
characterizing all four convictions as “serious drug offenses” under 18 U.S.C.
§ 924(e)(2)(A)(ii). Having failed to object to the PSR’s facts underlying his earlier drug
felonies, Turner is in no position to do so now. See United States v. Harris, 447 F.3d
1300, 1306 (10th Cir. 2006) (“Criminal Procedure Rule 32 requires the defendant to
affirmatively point out any fact in the PSR that he contends is inaccurate. Absent an
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objection to the PSR, the district court may accept any undisputed portion of the [PSR] as
a finding of fact,” and “[t]hus, the district court could properly rely on the PSR to
conclude that his prior crimes were separate [under the ACCA].”). Again, we conclude
that Turner has failed to make a substantial showing that he was denied a constitutional
right, and so we deny him a COA on this claim.
C. Ineffective Assistance of Counsel
Turner argues that his trial, and later appellate, counsel provided ineffective assistance
of counsel by failing to object to the lack of “Shepard documents” at the sentencing
hearing, and by failing to raise the issue on direct appeal. To prevail on a Sixth
Amendment claim of ineffective assistance of counsel, Turner must first “show that
counsel’s representation fell below an objective standard of reasonableness.” Strickland
v. Washington, 466 U.S. 668, 688 (1985). Second, Turner must prove prejudice by
demonstrating “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.
Because Turner must satisfy both prongs to succeed on his ineffective assistance of
counsel claim, the court may consider them in either order and need not address both “if
the defendant makes an insufficient showing in one.” Id. at 697.
Turner contends that he was prejudiced by his counsel’s failure to demand that the
government put forth Shepard documentation proving the predicate drug convictions
underlying the ACCA. In view of his admitted conduct underlying his earlier drug
convictions, neither “Shepard documents” nor anything else would matter. Nor do we
believe that any failure to demand “Shepard documents” was a substandard performance
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by his attorney. In an abundance of caution, the PSR author advised the court, counsel for
the parties, and Turner himself that Shepard had been accounted for and ruled out as a
valid issue:
The probation officer has reviewed one or more approved documents
articulated in Shepard v. U.S., 544 U.S. 13 (2005) in making this
designation. The documents are available for review by the court or
counsel, if requested.
R. vol. I at 43–46. Turner offers nothing upon which we might believe his attorney did
not accept the probation officer’s offer to review the records from his earlier drug
convictions. But doing so, or not doing so, would not have helped Turner. His earlier
drug convictions were for drug trafficking and punishable for more than five years.
In view of this, we once again must conclude that Turner has failed to make a
substantial showing that he was denied a constitutional right, and so we deny him a COA
on this final claim.
III. CONCLUSION
In sum, we deny Turner’s request for a COA and dismiss this matter. We also deny
his motion to proceed IFP because he has not demonstrated “the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)). Finally, we deny Turner’s request for the
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appointment of counsel on appeal.
ENTERED FOR THE COURT
Gregory A. Phillips
Circuit Judge
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