Turkington v. Norman

Filing 8

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that petitioner shall show cause no later than twenty-one (21) days from the date of this Order why this action should not be dismissed as untimely. IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, this action will be dismissed. Signed by District Judge Jean C. Hamilton on 10/18/13. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BOBBY TURKINGTON,
Petitioner,
v.
JEFF NORMAN,
Respondent.

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No. 4:13CV1897 JCH

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The petition appears to be barred by § 2254’s one-year
limitations period, and the Court will order petitioner to show cause why the petition
should not be dismissed.
Petitioner pled guilty to first-degree child molestation as prohibited by Mo.
Rev. Stat. § 566.067. Missouri v. Turkington, No. 07SL-CR05592-01 (St. Louis
County). The court sentenced petitioner to five years’ imprisonment on January 21,
2010. Id. Petitioner did not appeal, and he did not file a motion under Missouri
Court Rule 24.035 for postconviction relief. Petitioner filed a Rule 91 habeas action
on December 7, 2012, and the court dismissed the petition on June 10, 2013.
Petitioner filed the instant habeas action on September 17, 2013.
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).
Because petitioner did not appeal, the statute of limitations began to run on January
31, 2010, ten days after the trial court entered its judgment. The limitations period
expired, therefore, on January 31, 2011, and the instant petition appears to be timebarred.

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The Court will not dismiss this action as untimely without first giving notice
to petitioner. Petitioner shall, therefore, show cause within twenty-one days of this
Order why this action should not be dismissed as untimely.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in
forma pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that petitioner shall show cause no later than
twenty-one (21) days from the date of this Order why this action should not be
dismissed as untimely.
IT IS FURTHER ORDERED that if petitioner fails to comply with this
Order, this action will be dismissed.
Dated this 18th day of October, 2013.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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