Turk v. United States of America

Filing 16

MEMORANDUM: For the foregoing reasons, the Court concludes that Turk has not demonstrated that the untimeliness of his motion to vacate should be excused due to equitable tolling. Because the motion is time-barred, it will be dismissed. Additionally , the court finds that Turk has not made a substantial showing of the denial of a constitutional right. Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. 2253. A separate order of dismissal will accompany this Memorandum. Signed by District Judge Carol E. Jackson on 8/12/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WESLEY TURK,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:12-CV-1006 (CEJ)

MEMORANDUM
This matter is before the court upon the motion of Wesley Turk to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The
United States has filed a response, and the issues are fully briefed.
I. Background
On January 31, 1995, Turk pled guilty to one count of carjacking, in
violation of 18 U.S.C. § 2119, and one count of using a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

He was

sentenced on May 12, 1995, to a term of life imprisonment for the carjacking
offense and a consecutive 60-month term of imprisonment for the firearm
offense. Turk did not appeal the judgment.
On June 1, 2012, Turk filed the instant motion to vacate under §2255.
The United States filed a response to that motion on December 28, 2010.
Because the motion was filed beyond the applicable statute of limitations, the
court ordered Turk to show cause why the motion should not be dismissed as

time-barred. Turk filed a timely response to the show cause order.
II. Discussion
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a motion to vacate is subject to a one-year statute of limitations
which runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) 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 and made retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f)(1)-(4).
Because Turk did not appeal the May 12, 1995 judgment, his conviction
became final ten days later on May 26, 1995, when the period for filing a notice of
appeal expired.

See Murray v. United States, 313 Fed. Appx. 924 (8th Cir.

2009)(when defendant did not file direct appeal, his conviction became final upon
expiration of the time for filing notice of appeal) [citing Anjulo-Lopez v. United
States, 541 F.3d 814, 816 n. 2 (8th Cir. 2008)].

However, as the AEDPA was

enacted after Turk’s conviction became final, he had a one-year grace period from
April 24, 1996, the effective date of the statute, in which to file his motion, thus

-2-

making the deadline April 25, 1997. Moore v. United States, 174 F.3d 1131, 1133
(8th Cir. 1999).

Turk did not file the motion until more than 15 years after the

grace period ended.
The limitations period under the AEDPA may be equitably tolled “under
limited conditions, for example, where ‘extraordinary circumstances’ beyond a
prisoner's control prevent the timely filing.” Gassler v. Bruton, 255 F.3d 492, 495
(8th Cir. 2001). See also, United States v. Martin, 408 F.3d 1089, 1092 (8th Cir.
2005) (doctrine of equitable tolling is applicable in § 2255 proceedings). To avail
himself of equitable tolling, a prisoner must demonstrate the existence of the
extreme circumstances and that he acted with due diligence in pursuing the motion.
E.J.R.E. v. United States, 453 F.3d 1094, 1098 (8th Cir. 2006).

However, as

equitable tolling is a narrow window of relief, the court will toll the limitations period
only if the extraordinary circumstances made filing a timely motion completely
impossible.

Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001); Kreutzer v.

Bowersox, 231 F.3d 460, 463 (8th Cir. 2000).
In his response to the show cause order, Turk advances the following
grounds for equitable tolling: (1) he received ineffective assistance of counsel; (2)
he lacked access to federal materials while in state prison; and (3) and he is
actually innocent of all convicted charges.

1

Turk states in the response that he suffered “brain trauma” caused by the accident that
occurred in the course of the carjacking. [Doc. # 4-1, p. 3]. Later, however, he states that
he is not claiming that the accident “affected his ability to ‘Rationally or Factually’
understand his need to file a timely § 2255 motion” or that it affected “his thinking as to
when and how to file a timely § 2255.” [Doc. # 14, p. 5]. Consequently, the court will not
consider Turk’s allegation of brain trauma as a ground for equitable tolling.
1

-3-

A. Ineffective Assistance of Counsel
Turk claims that his attorney essentially abandoned him by failing to provide
him with requested documents and access to his file, advising him that he could not
appeal the judgment, and failing to advise him on filing a § 2255 motion. [Doc. #
4-1, pp. 2-3].

Serious or egregious attorney misconduct, rather than mere

negligence and error, may warrant equitable tolling. United States v. Martin, 408
F.3d 1089, 1093 (8th Cir. 2005).
provide

requested

documents

The allegation that defense counsel failed to
constitutes

mere

negligence

extraordinary circumstances that would warrant equitable tolling.

or

error—not

See Sellers v.

Burt, 168 Fed. Appx. 132, (8th Cir. Feb. 22, 2006) (failure to communicate with
petitioner and return his case file did not constitute “extraordinary circumstances”
beyond his control to warrant equitable tolling).
Turk’s allegation that his attorney incorrectly stated that he could not appeal
the judgment does not support his claim for equitable tolling. If Turk had filed a
direct appeal, his conviction would not have become final until after conclusion of
the appellate proceedings.

Thus, an appeal would have delayed the deadline for

filing the postconviction motion.

But it certainly would not have delayed it for 15

years.
Additionally, Turk’s allegation that his attorney failed to advise him on filing a
§ 2255 motion, even if true, does not establish a basis for equitable tolling. Turk
does not allege that his counsel was deceitful or that he purposely misled him about
his

right

to

seek

postconviction

relief.

-4-

Absent

allegations

of

deceit,

misrepresentation or other outrageous conduct Turk cannot establish extraordinary
circumstances that made the timely filing of a motion impossible. See, e.g., Byers
v. United States, 561 F.3d 832, 836 (8th Cir. 2009) (stating that without an
allegation of deceit, misrepresentation, or other serious misconduct, attorney’s
failure to object to the conviction did not prevent petitioner from timely filing his §
2255 motion).
Turk’s claim of ineffective assistance of counsel does not provide a basis for
equitable tolling.
B. Lack of Federal Materials
Turk next asserts that he is entitled to equitable tolling because he lacked
access to federal materials during the period he was in state prison. Turk was in
state custody from May 12, 1995, the date he was sentenced, until July 29, 2004
when he was transferred into federal custody. United States v. Turk, 4:94-CR-0263
(CEJ) [Doc. # 44].

He alleges that while in state custody he did not know that he

could file a § 2255 motion, and did not learn of this option until he was in federal
custody. This argument does not entitle Turk to equitable relief. The Eighth Circuit
has consistently held that a prisoner’s lack of legal knowledge or lack of access to
legal resources does not warrant equitable tolling. Cross-Bey v. Gammon, 322 F.3d
1012, 1015 (8th Cir. 2003); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.
2000); see Finch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007) (concluding that
petitioner failed to establish how his lack of access to the prison law library
presented sufficient impediment to toll statutory period). Turk’s claim contradicts

-5-

the principle that knowledge of the law is presumed; lack of knowledge does not
excuse one from compliance with the law. See, Baker v. Norris, 321 F.3d 769, 772
(8th Cir. 2003).
Even if Turk’s ignorance of the law is considered an extraordinary
circumstance beyond his control, it would do little to support his request for
equitable tolling. After Turk was delivered into federal custody, another eight years
passed before he filed his motion to vacate. Turk claims that he diligently pursued
the motion during that time, citing several letters sent to the court, the Bureau of
Prisons, and to others requesting legal documents.

Def. Ex. C [Doc. #4].

However, the earliest letter was sent in 2006, two years after movant entered
federal custody. Id. During the first two years of in federal custody, Turk’s only act
in pursuit of postconviction relief consisted of a single request for a transcript of the
sentencing hearing.

These circumstances do not demonstrate that Turk acted

with due diligence in pursuing the motion.

E.J.R.E. v. United States, 453 F.3d

1094, 1098 (8th Cir. 2006).
C. Actual Innocence
Turk’s final ground for equitable tolling is that he is actually innocent of the
criminal charges. In Flanders v. Graves, 299 F.3d 974 (8th Cir. 2002), the court of
appeals wrote that allowing a claim of actual innocence to support tolling the
statute of limitations “would take the equitable-tolling doctrine far from its original
and legitimate rationale.”
U.S.C. § 2254 petition).

Id. at 977

(applying equitable tolling doctrine to

28

However, in that decision the court also established a

-6-

basis for when actual innocence may be relevant to a claim for equitable tolling:
For such a claim to be viable, though, a petitioner would have to show
some action or inaction on the part of the respondent that prevented
him from discovering the relevant facts in a timely fashion, or, at the
very least, that a reasonably diligent petitioner could not have
discovered these facts in time to file a petition within the period of
limitations.
Id. at 978.
In this case, Turk makes no such showing.

Therefore his claim of actual

innocence is not a sufficient basis to excuse his untimely § 2255 motion.
III. Conclusion
For the

foregoing reasons, the

Court concludes

that Turk has

not

demonstrated that the untimeliness of his motion to vacate should be excused due
to equitable tolling.

Because the motion is time-barred, it will be dismissed.

Additionally, the court finds that Turk has not made a substantial showing of the
denial of a constitutional right. Therefore, the court will not issue a certificate of
appealability. See 28 U.S.C. 2253.
A separate order of dismissal will accompany this Memorandum.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 12th day of August, 2015.

-7-