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Turner v. United States

United States District Court, C.D. Illinois, Peoria Division

October 29, 2019

DAVID C. TURNER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND OPINION

          James E. Shadid United States District Judge

         This cause is before the Court on Petitioner David C. Turner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 1). Turner pleaded guilty to receipt and possession of child pornography and claims his attorney provided ineffective assistance at sentencing when defense counsel failed to present mitigating evidence to counter the prosecution's portrayal of him as a dangerous individual. The Court finds a hearing on the Motion is not required because “the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.” Hutchings v. United States, 618 F.3d 693, 699-700 (7th Cir. 2010) (quotation omitted). Because Petitioner is not entitled to relief, the § 2255 motion is DENIED.

         I. BACKGROUND [1]

         In January 2017, Turner was charged with two counts of receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). R. 12, Indictment. The Indictment charged in Count 1 that Turner “knowingly received a visual depiction, that is, the file titled, ‘((Hussyfan)) (Pthc) Kitty 1 (5yo).CBABY - EAGERLY SUCKS grown man's BIG DICK 3 TIMES & lets him CUM IN HER LITTLE MOUTH GOOD!.mpg,' using a means and facility of interstate commerce, ” in Count 2 that Turner “knowingly received a visual depiction, that is, the file titled, ‘compilation 101 Cumshots pedo Brand New 2008 Pthc (Kingpass Hussyfan Kleuterkutje Kinder) 101 Cumshots Revised By Harrierxvid.avi,' and in Count 3 that Turner “did knowingly possess a 32 GB Sandisk USB drive, S/N B271-B28F, that contained visual depictions other than those specified in Counts One and Two where such visual depictions involved the use of minors engaging in sexually explicit conduct and were of such conduct. Id. Turner pleaded guilty without a plea agreement to all three counts of the Indictment on February 16, 2017. Before Turner pleaded guilty, the Court recounted the charges in the Indictment, the potential statutory penalties, and Turner's right to continue to trial. R. 34.

         The United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of Turner's sentencing hearing. As recounted in the PSR, on February 9, 1996, Turner was convicted of three counts of Production of Child Pornography, and Possession of Child Pornography in Tazewell County Circuit Court, Illinois. PSR ¶6. Turner was 19 years old at the time of the offense and had videotaped sexual relations between himself and a 14-year-old girl, whom Turner stated he was in a relationship with at the time. PSR ¶6. While in prison on this offense, Turner attempted to hire his cellmate to murder the Judge, Prosecutor, victim, and victim's family. PSR ¶49. Turner was convicted of solicitation of murder, solicitation of aggravated kidnapping, solicitation of harassing a witness, and solicitation of intimidation in Johnson County Circuit Court, Illinois. PSR ¶49. Turner was released from prison on June 6, 2016, after serving both sentences, and he registered as a sex offender.

         In December 2016, only six months after his release from prison, Turner received the video file named in Count 1 of the indictment: “((Hussyfan)) (Pthc) Kitty 1 (5yo).CBABY - EAGERLY SUCKS grown man's BIG DICK 3 TIMES & lets him CUM IN HER LITTLE MOUTH GOOD!.mpg.” PSR ¶12. As explained in the PSR, authorities were alerted as to the internet protocol (IP) address for devices offering to share files known to contain images of child pornography. The IP addresses were eventually linked to Turner. During the investigation, the officer downloaded three files directly from one of the IP addresses later found to be linked to Turner. PSR ¶¶12-16. One “of those files titled ‘Pthc - Mandy (09yr) - Real Incest 2 [USA][00.13.01].mpg,' was 13 minutes long. It depicted a nude prepubescent female performing oral sex on an adult male. The third file, ‘(Ptch) Hc Celia 02 5yo Fuck (62m31s).mpg,' depicted a series of scenes involving a prepubescent female. In some scenes, the minor was nude. In others, she was partially clothed. She displayed her genitals in a lascivious manner in various scenes.” PSR ¶13.

         The investigation lead to a search warrant being issued at the home of Michael and Pamela Schrader. PSR ¶¶14-15. Turner's father was dating Pamela Schrader, and Michael Schrader, her husband, lived in the basement. PSR ¶15. Turner also lived in the residence and was found sleeping in his bedroom. PSR ¶15. When law enforcement officers entered the room, “[t]he computer was running the peer-to-peer program, Frostwire, and was actively downloading a large music file. There was a HDMI cable with one end attached to a large screen television and the other end unattached. The computer was seized so that a forensic analysis could be performed. The defendant was taken into custody and charged with the counts listed in the Indictment.” PSR ¶15.

         After initially declining to talk to agents, Turner admitted to using Frostwire to download music. PSR ¶17. A forensic analysis of the computer revealed that Turner had received and possessed 84 video files of child pornography, “two that contained bondage and three included urination. It also contained 481 image files, with 6 of them containing bondage.” PSR ¶22. As recounted at the change of plea hearing, Turner “admitted to using peer-to-peer programs to search and download pornography . . . stating that he had been downloading child pornography for approximately two and a half months. He also stated that he knew what he had done was wrong and illegal but claimed that he was collecting these images and videos to give to his father at another date.” R. 34.

         Due to his prior qualifying conviction related to sexual abuse, Turner faced an enhanced statutory penalty of at least 15 years and up to 40 years for Counts 1 and 2 (Receipt) and at least 10 years and up to 20 years for Count 3 (Possession). PSR ¶74; 18 U.S.C. §§ 2252(b)(1) & (b)(2). The PSR found that his total offense level was 32 under the sentencing guidelines, and that Turner had a criminal history category of IV, resulting in a guideline imprisonment range of 168 months to 210 months. PSR ¶75. However, because the statutorily authorized sentence for Counts 1 and 2 was a minimum of 15 years and a maximum of 40 years per count, the guideline imprisonment range became 180 months to 210 months. PSR ¶75.

         At the sentencing hearing on June 15, 2017, the prosecution argued that a lengthy sentence was needed to protect the public from Turner's criminal behavior. The prosecution stated that “[i]t is clear that he is attracted to children.” R. 35, Sent. Tr. at 45. The prosecution also recounted the images involved in the case as stated in the PSR “[s]o that there is a clear record of the type of images that Mr. Turner is interested in obtaining and using for his own sexual gratification.” Id. at 46. Additionally, the prosecution stated that “[w]hen [Turner] was 19 and he was engaged in sexual intercourse with a 14-year-old, that's different. Now we are talking about very, very small children, infants, four to five year olds being raped, tortured and in bondage. That's the type of thing that Mr. Turner gets excited by and that's what was found on a flash dive in his shaving kit.” Id. at 50.

         Turner's defense counsel, Federal Public Defender Robert Alvarado, argued that the Court should impose the minimum sentence of 180 months' imprisonment-which was within the guidelines. Mr. Alvarado's statement centered around his argument that the sentencing guideline in this case was substantially unreasonable. R. 35, Sent. Tr. at 51-53. See also, R. 20, Def. Commentary at 1-5. Mr. Alvarado also highlighted that after serving a 15-year imprisonment sentence, Turner's likelihood of recidivism would significantly decrease: “The simple fact is that Mr. Turner is going to be at least in his late 50s if he got the minimum sentence in this case. And by that point in time, we know from statistics that, generally speaking, his desire and the actual commission of crimes after those ages goes down dramatically.” R. 35, Sent. Tr. at 54. Finally, Mr. Alvarado noted that in this case, although Turner was subject to the mandatory minimum sentence, he believed this was five years above what should be imposed. Id. at 53.

         Turner was also provided with the opportunity to make a statement to the Court prior to sentencing, and said:

I mean, what can I say? You know, I did what I did, and I accept responsibility for that.
The one comment that I do want to make is this is when-back when I was 19 years old, I had a relationship, a long-term relationship with a girl for about two and a half years, which we made pornographic videos. When I went to prison, I was very angry because I had a 30-year sentence for something I felt injustice and I lashed out in a way I shouldn't have and that was my fault. I took responsibility. Took a 15-year sentence for that, ...

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