United States District Court, C.D. Illinois, Peoria Division
DAVID C. TURNER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER AND OPINION
E. Shadid United States District Judge
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
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.
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.
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
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.
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.
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.
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.
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.
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, ...