TURNER v. BROWN

Filing 19

ENTRY Discussing Petition for Habeas Corpus - Turner has encountered the hurdle produced by the 1-year statute of limitations. He has not shown the existence of circumstances permitting him to overcome this hurdle, and hence is not entitled to the r elief he seeks. His petition for a writ of habeas corpus is therefore denied as untimely without a decision being made as to the merits of his claims. Judgment consistent with this Entry shall now issue. The court denies a certificate ofappealability. **SEE ENTRY** Signed by Judge William T. Lawrence on 2/18/2015. (AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DUANE E. TURNER,

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Petitioner,
v.
DICK BROWN,
Respondent.

Case No. 2:14-cv-0020-WTL-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Duane Turner for a writ of habeas
corpus must be denied and the action dismissed with prejudice. In addition, the court finds that a
certificate of appealability should not issue.
The Petition for Writ of Habeas Corpus
I. Background
The pleadings and the expanded record establish the following:
1.

Turner was convicted of murder, criminal confinement and robbery based on tragic

events which occurred during the early morning hours of September 24, 1994. See Turner v. State,
682 N.E.2d 491 (Ind. 1997). Turner’s direct appeal was followed by his action for post-conviction
relief, which was pending from September 8, 2000 until February 14, 2013. On July 1, 2013, the
trial court reduced the Class A Robbery to a Class B felony and reduced the sentence for that
offense to ten years.
2.

Turner signed the petition for writ of habeas corpus filed in this case on January 29,

2014, contending that his convictions are constitutionally infirm.

II. Discussion
“We live in a world of deadlines.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th
Cir. 1996). In an attempt to Acurb delays, to prevent 'retrials' on federal habeas, and to give effect
to state convictions to the extent possible under law,@ Congress, as part of the Anti-terrorism and
Effective Death Penalty Act of 1996, revised several of the statutes governing federal habeas relief.
Williams v. Taylor, 529 U.S. 362, 404 (2000). One such provision provides that:
a state prisoner has one year to file a federal petition for habeas corpus relief,
starting from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). . . . “The one-year clock is stopped, however, during the time the
petitioner's ‘properly filed’ application for state postconviction relief ‘is pending.’”
Day [v. McDonough, 547 U.S. 198, 201 (2006)] (quoting 28 U.S.C. § 2244(d)(2)).
Wood v. Milyard, 132 S. Ct. 1826, 1831 (2012)(footnote omitted).
Turner’s conviction became final on September 22, 1997. This was the last day on which
turner could have filed a petition for a writ of certiorari with the United States Supreme Court.
Griffith v. Kentucky, 479 U.S. 314, 321 & n.6 (1987). Absent an event which tolled the running of
the statute of limitations, the statute of limitations expired one year later. Because there was no
event or circumstance which tolled the running of the statute of limitations, the last day on which
Turner could have filed his federal petition for writ of habeas corpus was September 23, 1998.
The events which occurred after that date, including the post-conviction proceedings, are
of no consequence because all such events occurred after the statute of limitations had expired.
See Fernandez v. Sternes, 227 F.3d 977, 978-79 (7th Cir. 2000) (explaining that it is illogical to
toll a limitations period that has already passed).

III. Conclusion

“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim
is properly presented to the district court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 14 (1992)
(O'Connor, J., dissenting) (internal citations omitted).
In this case, Turner has encountered the hurdle produced by the 1-year statute of
limitations. He has not shown the existence of circumstances permitting him to overcome this
hurdle, and hence is not entitled to the relief he seeks. His petition for a writ of habeas corpus is
therefore denied as untimely without a decision being made as to the merits of his claims. See
Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007).
Judgment consistent with this Entry shall now issue.
Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2254 Proceedings, and 28 U.S.C. § 2253(c), the court finds that Turner has failed to show that
reasonable jurists would find it Adebatable whether [this court] was correct in its procedural ruling.@
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a certificate of
appealability.
IT IS SO ORDERED.
Date: 2/18/15
Distribution:

_______________________________

Electronically Registered Counsel

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Duane Turner
No. 952429
Wabash Valley Correctional Facility
Electronic Service Participant-Court Only