No. 17A- IN THE SUPREME COURT OF THE UNITED STATES JOHN R. TURNER, Applicant, vs. UNITED STATES Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit APPLICATION FOR EXTENSION OF TIME TO FILE A PETITION FOR WRIT OF CERTIORARI Robert L. Hutton Counsel of Record GLANKLER BROWN, PLLC 6000 Poplar Avenue Suite 400 Memphis, Tennessee 38119 (901) 525-1322 [email protected] APPLICATION FOR EXTENSION OF TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI To the Honorable Elena Kagan, Circuit Justice for the United States Court of Appeals for the Sixth Circuit: In accordance with Rule 13.5 of the United States Supreme Court Rules, John R. Turner requests a thirty-day extension of time, up to and including Monday, July 23, 2018, within which to file his petition for writ of certiorari. Turner's petition for certiorari is currently due June 21, 2018. In support of this application, counsel states: Turner's case raises two important constitutional questions: Does the Sixth Amendment right to counsel attach when a prosecutor conducts plea negotiations prior to the formal commencement of judicial proceedings? Does the Sixth Amendment right to counsel attach when a federal prosecutor conducts plea negotiations before the filing of a formal charge in federal court, where the defendant has already been charged with the same offense in state court? On March 23, 2018, the United States Court of Appeals for the Sixth Circuit, sitting en banc, denied Turner relief. Turner v. United States, 885 F.3d 949 (6th Cir. 2018). (attached) The case resulted in five opinions, including a concurrence dubitante, and a vigorous dissent. The majority opinion acknowledges a circuit split. Id. at 954-955. Eight of the sixteen judges on the Sixth Circuit Court of Appeals suggested that the Supreme Court needed 2 1 to address the issues raised in Turner's case. See Turner v. U.S. 885 F.3d at 956 (Bush and Kethiedge concurring) ("In light of this history of the original meaning of the Sixth Amendment text, the Supreme Court might wish to reconsider its right-to-counsel jurisprudence."); Id. at 976 (Clay concurring) ("I strongly urge the Supreme Court to reconsider this bright line test for attachment of the Sixth Amendment right to counsel."); Id. at 977 (White concurring) ("Unconstrained by the Supreme Court's consistent application of the Kirby bright-line rule, I would find the dissent, Judge Bush's concurrence, and Judge Clay's pertinent concluding observations persuasive on the merits."); Id. at 983-984 (Stranch, Cole, Moore, and Donald, dissenting)("Turner stood accused of a crime by an experienced federal prosecutor, yet today's decision condemns him and the ever-growing number of those similarly situated to confront such accusations without the professional legal skills necessary to protect them from the unwarranted loss of liberty... I believe that this result violates the Sixth Amendment. I therefore respectfully dissent.") The Supreme Court has certiorari jurisdiction over this case under 28 U.S.C. § 1254(1). Turner currently has until June 21, 2018 to file a petition for writ of certiorari. See U. S. S. Ct. R. 13.1. Under Rule 13.5, a Supreme Court Justice may extend the time for seeking certiorari for up to sixty additional days. 3 I Counsel requests an additional thirty days to properly prepare and file Turner's petition for writ of certiorari. Since the thirtieth day would fall on a Saturday, Turner requests he be given up until Monday, July 23, 2018 to file his petition. Undersigned counsel has numerous commitments to other clients, including capital habeas, and upcoming capital clemency work that require a significant amount of time. Counsel has also associated Professor Stuart Banner with the UCLA Supreme Court Practice Clinic, to work with undersigned counsel on the petition, and ensure that the arguments presented to the Court are thorough and in the best light possible. Professor Banner has other commitments, and has been out of the country for a significant period. Thus, granting an additional 30 days will ensure that these important issues to be raised are properly, rather than hurriedly, presented to the Court Wherefore, Turner requests that he be granted a thirty-day extension of time, to and including Monday, July 23, 2018, within which to file a petition for writ of certiorari. 4 '0 Respectfully Submitted, Robert L. Hutton Glankler Brown, PLLC 6000 Poplar Avenue Suite 400 Memphis, Tennessee 38119 (901) 525-1322 4818-2255-0114, v. 1 Case: 15-6060 Document: 61-2 Filed: 03/23/2018 Page: 1 (3 of 51) 11111 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0058p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN R. ThER, Petitioner-Appellant, 1 No. 15-6060 V. UNITED STATES OF AMERICA, Respondent-Appellee. Appeal from the United States District Court for the Western District of Tennessee at Memphis. Nos. 2:12-cv-02266; 2:08-cr-20302-1—Samuel H. Mays, Jr., District Judge. Argued: October 11, 2017 Decided and Filed: March 23, 2018 Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, and BUSH, Circuit Judges. COUNSEL ARGUED EN BANC: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. ON SUPPLEMENTAL BRIEF: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Kevin G. Ritz, Murrell G. Martindale, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. Steven J. Muiroy, UNIVERSITY OF MEMPHIS, Memphis, Tennessee, Stephen Ross Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C., Knoxville, Tennessee, Adam Lamparello, Newport, Kentucky, for Amici Curiae. BATCHELDER, J., delivered the opinion of the court in which GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, THAPAR, and BUSH, JJ., joined, The clerk submitted this case to the en banc panel of the Sixth Circuit Court of Appeals before Judge Joan L. Larsen received her commission on November 8, 2017. Case: 15-6060 Document: 61-2 Filed: 03/23/2018 Page: 2 (4 of 51) t ill No. 15-6060 Turner v. United States Page 2 and CLAY and WHITE, JJ., joined in the result. BUSH, J. (pp. 9-22), delivered a separate dubitante opinion in which KETHLEDGE, J., joined. CLAY, J. (pp. 23-37), delivered a separate concurrence in the judgment only in which WHITE, J., joined in Part I. WHITE, J. (pp. 38-39), delivered a separate concurrence in the judgment only. STRANCH, J. (pp. 40-48), delivered a separate dissent, in which COLE, C.J., and MOORE and DONALD, JJ., joined. OPINION ALICE M. BATCHELDER, Circuit Judge. Appellant John Turner asks us to overrule nearly four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations. See United States v. Moody, 206 F.3d 609, 614- 15 (6th Cir. 2000) (citing United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980)). We decline to do so. Our rule—copied word for word from the Supreme Court's rule—is that the Sixth Amendment right to counsel attaches only "at or after the initiation of judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 614 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)); see also United States v. Gouveia, 467 U.S. 180, 188 (1984). The district court followed this rule, and we AFFIRM. I. In 2007, after appellant John Turner robbed four Memphis-area businesses at gunpoint, he was arrested by a Memphis police officer who was part of a joint federal-state "Safe Streets Task Force." Turner hired an attorney. A Tennessee grand jury indicted Turner on multiple counts of aggravated robbery, and Turner's attorney represented him in plea negotiations with state prosecutors. During the state proceedings, the state prosecutor informed Turner's attorney that the United States Attorney's Office planned to bring federal charges against Turner. Turner's attorney contacted the Assistant United States Attorney ("AUSA") responsible for Turner's case, who confirmed that the United States planned to bring federal robbery and firearms charges that could result in a mandatory minimum of eighty-two years' imprisonment for the firearms Case: 15-6060 Document: 61-2 Filed: 03/23/2018 Page: 3 (5 of 51) No. 15-6060 Turner v. United States Page 3 charges alone. The AUSA conveyed to Turner's attorney a plea offer of fifteen years' imprisonment which would expire if and when a federal grand jury indicted Turner. Turner's attorney says that he correctly and timely relayed the federal plea offer to Turner, but that Turner refused it. Turner disputes this. In any event, Turner did not accept the federal plea offer before the federal grand jury in the United States District Court for the Western District of Tennessee indicted him in 2008. Turner hired a new attorney and negotiated a plea deal which resulted in twenty-five years' imprisonment. As part of Turner's plea agreement, he waived his right to file a direct appeal. In 2012, Turner filed a 28 U.S.C. § 2255 motion alleging that his original attorney rendered constitutionally ineffective assistance during the federal plea negotiations. The district court, following Sixth Circuit and Supreme Court precedent, found that Turner's Sixth Amendment right to counsel had not yet attached during his preindictment federal plea negotiations and denied his motion. A panel of this court affirmed the district court. Turner v. United States, 848 F.3d 767 (6th Cir.