Turner v. Cassady

Filing 41

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Petitioner Billy Ray Turner's Motion for Protective Order and Suggestion of Expert [ECF No. 36 ] is DENIED. IT IS FURTHER ORDERED that Petitioner's Motion for Leave to Proceed in Forma Pauperis on Appeal [ECF No. 39 ] is GRANTED. IT IS FURTHER ORDERED that Petitioner's Motion for Certificate of Appealability [ECF No. 40 ] is DENIED. Signed by District Judge E. Richard Webber on 09/03/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BILLY RAY TURNER, JR.,

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Petitioner,
v.
JAY CASSADY,
Respondent.

No. 4:13CV02470 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Billy Ray Turner’s Motion for
Protective Order and Suggestion of Expert [ECF No. 36], Motion for Leave to Appeal in Forma
Pauperis [ECF No. 39], and Motion for Certificate of Appealability [ECF No. 40].
First, Petitioner states a certain witness1 wishes to recant her prior statements. Petitioner
argues this “witness” suddenly has been moved to an unknown location. Without providing any
support, Petitioner contends the Government relocated this witness in an attempt to obstruct his
habeas proceedings, and, ultimately, to prevent him from proving his actual innocence.
Petitioner asks the Court for a protective order preventing the Government from obstructing
justice in this manner. The Court will deny this request, as it is wholly speculative and without
any support. There is no evidence suggesting the Government had any involvement in the
alleged witness’s supposed relocation. Petitioner’s Motion for Protective Order and Suggestion
of Expert [ECF No. 36] will be denied.
Second, Petitioner seeks a certificate of appealability regarding the Court’s Memorandum

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Based on the filings in this case, this “witness” is presumably the victim of the underlying
offenses of first-degree sodomy and incest.

and Order dated July 29, 2014 [ECF No. 34]. The Court finds Petitioner has not made a
substantial showing of the denial of a constitutional right, as is required before a certificate of
appealability can issue.2 See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997); Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a “substantial showing” is a showing
that the “issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings”). Therefore, the Court shall not issue a
certificate of appealability. Petitioner’s Petition for Certificate of Appealability [ECF No. 40]
will be denied.
Finally, upon review of the record, the Court finds Petitioner financially unable to pay
any portion of the required filing fee on appeal and therefore grants Petitioner’s request for
proceed in forma pauperis. Petitioner’s Motion for Leave to Appeal in Forma Pauperis [ECF
No. 39] will be granted.
IT IS HEREBY ORDERED that Petitioner Billy Ray Turner’s Motion for Protective
Order and Suggestion of Expert [ECF No. 36] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Leave to Proceed in Forma
Pauperis on Appeal [ECF No. 39] is GRANTED.

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Petitioner urges the Court to apply Pool v. Armontrout, 852 F.2d 372 (8th Cir. 1988), and grant
him a hearing on his allegations the Government is interfering with his ability to prosecute his
habeas proceedings. The Court declines to do so, as, under Pool, Petitioner must show he would
prevail on his habeas proceedings, absent the alleged interference from the Government. Id. at
374. Petitioner’s blanket accusations fail to meet this burden.
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IT IS FURTHER ORDERED that Petitioner’s Motion for Certificate of Appealability
[ECF No. 40] is DENIED.
Dated this 3rd Day of September, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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