Turkington v. Norman

Filing 7

MEMORANDUM - Rule 4 of the Rules Governing Habeas Cases requires that the Court review a habeas petition when it is filed and to dismiss when it is clear that petitioner is entitled to relief. The Court reviewed the instant petition when it was fil ed and determined that it appeared to be time-barred. The Court ordered petitioner to show cause why the case should not be dismissed, and petitioner has filed his response. After careful review, the Court has determined that this action should be summarily dismissed under Rule 4 as time-barred. (See order for full details) Signed by District Judge Carol E. Jackson on 11/15/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BOBBY TURKINGTON,

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Petitioner,
v.
JEFF NORMAN,
Respondent.

No. 4:13CV1896 SPM

MEMORANDUM
Rule 4 of the Rules Governing Habeas Cases requires that the Court review a
habeas petition when it is filed and to dismiss when it is clear that petitioner is
entitled to relief. The Court reviewed the instant petition when it was filed and
determined that it appeared to be time-barred. The Court ordered petitioner to show
cause why the case should not be dismissed, and petitioner has filed his response.
After careful review, the Court has determined that this action should be summarily
dismissed under Rule 4 as time-barred.
On April 2, 2008, petitioner pled guilty to deviate sexual intercourse with a
minor less than twelve years old in violation of Mo. Rev. Stat. § 566.062. See Pet’r
Ex. at 12-13; Missouri v. Turkington, No. 07A9-CR01127-01 (Crawford County).
The crime was committed between January 1, 2000, and September 17, 2000. See
Pet’r Ex. at 4. On July 8, 2008, the court sentenced petitioner to fifteen years’

imprisonment. See Pet. at 1. Petitioner did not file an appeal, and he did not file a
motion for postconviction relief under Missouri Court Rule 24.035. Petitioner filed
a habeas petition, pursuant to Missouri Supreme Court Rule 91, on December 7,
2012. Turkington v. Norman, No. 12AC-CC00802 (Cole County). The petition was
dismissed on June 10, 2013. Id.
Under 28 U.S.C. § 2244(d):
(1) A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence. . . .
In Missouri, a prisoner has ten days to file a notice of appeal from the date the
criminal judgment is rendered. See Mo. Ct. R. 30.01(a); Mo. Ct. R. 81.04(a).
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Because petitioner did not appeal, the statute of limitations began to run on July 18,
2008, ten days after the trial court entered its judgment. The limitations period
expired, therefore, on July 18, 2009, and the instant petition appears to be timebarred.
Petitioner argues that he is entitled to equitable tolling because he is “factually
innocent” of deviate sexual intercourse. In 2000, “deviate sexual intercourse” was
defined as:
any act involving the genitals of one person and the mouth, tongue, or
anus of another person or a sexual act involving the penetration,
however slight, of the male or female sex organ or the anus by a finger,
instrument or object done for the purpose of arousing or gratifying the
sexual desire of any person.
Mo. Rev. Stat. § 566.010 (2000) (emphasis added). Petitioner argues that the state
failed to prove either penetration or that he had been aroused or sexually gratified.
Petitioner’s claim of actual innocence is meritless in light of his guilty plea.
During the plea colloquy, petitioner stated that he understood the charges against him
and that he wished to plead guilty. Pet’r Ex. at 8. The prosecutor stated that the
evidence would show that petitioner “had deviate sexual intercourse with [Victim],
both an act involving his mouth and her vagina and also by his mouth and her
breasts.” Id. at 12. And petitioner agreed to the prosecutor’s description of the
evidence.

Id. at 13. Under these allegations, neither penetration nor sexual
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gratification were required elements under § 566.010, because the placing of
petitioner’s mouth on the victim’s genitals satisfied the elements of deviate sexual
intercourse.
Petitioner’s argument that sexual gratification is a required element is
frivolous. Under § 566.010, a defendant is guilty of deviate sexual intercourse if he
either (1) commits “any act involving the genitals of one person and the mouth,
tongue, or anus of another person,” or (2) commits “a sexual act involving the
penetration, however slight, of the male or female sex organ or the anus by a finger,
instrument or object done for the purpose of arousing or gratifying the sexual desire
of any person.” Because petitioner admitted to placing his mouth on the victim’s
vagina, he admitted a sufficient factual basis for a finding of guilt under the statute.
Petitioner also argues that the Court may not address the issue of timeliness sua
sponte. He relies on Wood v. Milyard, 132 S. Ct. 1826 (2012), for this proposition.
In Wood, the Court held that a federal court of appeals has the authority, but not the
obligation, to address the timeliness of a state prisoner’s federal habeas petition on
the court’s own initiative. 132 S. Ct. at 1834. This is consistent with the Court’s
holding in Day v. McDonough, 547 U.S. 198 (2006), in which the Court held “that
district courts are permitted, but not obliged, to consider, sua sponte, the timeliness
of a state prisoner’s habeas petition.” 547 U.S. at 209.
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The limitations period expired more than four years before petitioner filed this
case. And petitioner’s argument for equitable tolling is meritless. Therefore, the
Court will dismiss this action without further proceedings.
Finally, petitioner has failed to demonstrate that jurists of reason would find
it debatable whether the petition is untimely. Thus, the Court will not issue a
certificate of appealability. 28 U.S.C. § 2253(c).
A separate Order of Dismissal will be filed contemporaneously.
Dated this 15th day of November, 2013.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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