Turner v. Baker et al

Filing 4

ORDER that the Clerk shall DETACH, FILE, and electronically SERVE the petition ECF No. 1 -1 on Respondents; the Clerk directed to add Adam Paul Laxalt, Nevada Attorney General, as counsel for Respondents; no action is required by Respondents until f urther order by this Court; Petitioner shall have until 05/17/2017 to show cause and file such proof he may have to demonstrate that the petition for writ of habeas corpus was timely filed with a complete and accurate history, with dates, of any state postconviction proceedings; if Petitioner is unable to demonstrate that the petition for writ of habeas corpus was filed within the limitations period or that he is entitled to equitable tolling, the Court will enter an order dismissing the petition. Signed by Judge Howard D. McKibben on 04/17/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

ALQUANDRE H. TURNER,

10

Case No. 3:17-cv-00151-HDM-VPC
Petitioner,

ORDER

v.
11
RENEE BAKER, et al.,
12
Respondents.
13
Petitioner Alquandre H. Turner has submitted a pro se petition for writ of habeas

14
15

corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1-1).1 As he has paid the filing fee, his

16

application to proceed in forma pauperis (ECF No. 1) shall be denied as moot. It

17

appears from the petition that it may be subject to dismissal as time-barred.
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year

18
19

statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. §

20

2244(d). The one-year time limitation can run from the date on which a petitioner’s

21

judgment became final by conclusion of direct review, or the expiration of the time for

22

seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a properly filed petition for

23

state postconviction relief can toll the period of limitations. 28 U.S.C. § 2244(d)(2).
In his federal petition, Turner states that he wishes to challenge the judgment of

24
25

conviction in state case no. 06C219519 (ECF No. 1-1, p. 1). He indicates that the

26

judgment of conviction was entered on June 20, 2006. Id. This court takes judicial

27
1

28

Turner styles his petition a § 2241 petition. However, he claims that he is in custody pursuant to a state-court
judgment in violation of his federal constitutional rights; thus the petition is properly construed as a § 2254
petition.

1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

notice of the Nevada Supreme Court docket, which indicates that the state supreme
court affirmed Turner’s conviction on April 6, 2007, and remittitur issued on May 2,
2007. Nevada Supreme Court Case No. 47722. Turner indicates that an amended
judgment of conviction was entered on October 21, 2014 (ECF No. 1-1, p. 1). The
Nevada Supreme Court docket reflects that it affirmed the amended judgment to correct
a clerical error on June 10, 2015, and remittitur issued on July 6, 2015. Nevada
Supreme Court Case No. 66911. Turner dispatched his federal habeas petition on or
about March 9, 2017. It appears, therefore, that Turner failed to file his federal habeas
petition before the AEDPA one-year limitations period expired.
Turner may be entitled to equitable tolling of the one-year limitations period if he
can establish that he diligently pursued his rights and some extraordinary circumstance
stood in his way. See Calderon v. United States District Court (Beeler), 128 F.3d 1283,
1288 (9th Cir. 1997), overruled in part on other grounds, Calderon v. United States
District Court (Kelly), 163 F.3d 530 (9th Cir. 1998); Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005). The petitioner will be given the opportunity to show that either the instant
petition was not filed beyond the one-year statute of limitations, or that he is entitled to
equitable tolling of the time limitation.
IT IS THEREFORE ORDERED that the Clerk shall DETACH, FILE, and
electronically SERVE the petition (ECF No. 1-1) on respondents.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents. No action is required by respondents
until further order by this court.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the
date of entry of this order to show cause and file such proof he may have to
demonstrate that the petition for writ of habeas corpus was timely filed within the oneyear time limitation or that he is entitled to equitable tolling of the time period. He shall
also set forth a complete and accurate history, with dates, of any state postconviction

28
2

1
2
3
4
5
6

proceedings presented to the state district court and the Nevada Supreme Court,
including direct appeal and state habeas petitions.
IT IS FURTHER ORDERED that if petitioner is unable to demonstrate that the
petition for writ of habeas corpus was filed within the limitations period or that he is
entitled to equitable tolling, the court will enter an order dismissing the petition.
DATED: April 17, 2017.

7
8
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3