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.

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 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. § 2255

be 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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