Turner v. Director, TDCJ-CID

Filing 32

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION for 27 Report and Recommendations. ORDERED that the petitions for a writ of habeas corpus are DENIED and the cases are DISMISSED with prejudice as time-barred. A certificate of appealability is DENIED. All motions not previously ruled on are DENIED. Signed by District Judge Amos L. Mazzant, III on 7/8/2019. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
NOEL CHRISTOPHER TURNER, #1861086
VS.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:17cv326
CONSOLIDATED WITH CIVIL ACTION
NOS. 4:17cv327 AND 4:17cv328

ORDER OF DISMISSAL
Petitioner Noel Christopher Turner, an inmate confined in the Texas prison system, filed the
above-styled and numbered petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petitions were referred to United States Magistrate Judge Christine A. Nowak, who issued a Report
and Recommendation concluding that the petitions should be dismissed as time-barred. Petitioner has
filed objections.
Petitioner is challenging three Grayson County convictions. On May 23, 2013, after pleas of
guilty and pursuant to a plea agreement, he was sentenced to 28 years of imprisonment for conspiracy
to commit arson, 5 years of imprisonment for sexual assault of a child, and 1 year of imprisonment for
credit card or debit card abuse, with the sentences running concurrently. He did not make any attempt
to challenge the convictions in state court until September 2016. The present petitions were not filed
until May 2, 2017.
Under 28 U.S.C. § 2244(d)(1)(A), Petitioner had one year from the date his convictions
became final to file the present petitions, absent tolling provisions. His convictions became final on
June 24, 2013. The present petitions were due no later than June 24, 2014, in the absence of tolling
provisions. The petitions were not filed until almost three years later on May 2, 2017. As was
previously noted, he did not file anything in state court until September 2016. By then, the present
petitions were already time-barred by more than two years. The pendency of the state applications did
not effectively toll the deadline of June 24, 2014.
In both his petitions and objections, Petitioner argues that he is entitled to equitable tolling.
The Supreme Court has held that the AEDPA’s statute of limitations may be tolled for equitable
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reasons. Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling
only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way and prevented timely filing. Id. at 649. Petitioner has shown neither.
He attached copies of several letters he wrote concerning his convictions, but he did not show that he
pursued his rights diligently or that extraordinary circumstances stood in his way and prevented timely
filing.
Petitioner also argues in both his petition and objections that he is entitled to relief based on
actual innocence. The Supreme Court has held that “actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . the
expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). See also
Tamayo v. Stephens, 740 F.3d 986, 990 (5th Cir. 2013). “To be credible, such a claim requires
petitioner to support his allegations of constitutional error with new reliable evidence - whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that
was not presented at trial. Because such evidence is obviously unavailable in the vast majority of
cases, claims of actual innocence are rarely successful.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
“[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Id. at 329. Petitioner’s objections focus on legal arguments, as opposed to factual
innocence, but “[a]ctual innocence means ‘factual innocence and not mere legal insufficiency.’” United
States v. Jones, 172 F.3d 381, 384 (5th Cir. 1999). He has not shown actual innocence. Furthermore,
as the Magistrate Judge explained, courts have been unwilling to allow prisoners to invoke McQuiggin
after pleading guilty. Petitioner knowingly and voluntarily pled guilty, and he has not made a viable
showing of actual innocence; thus, the actual innocence gateway for consideration of his claims is not
available.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Petitioner to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and Petitioner’s objections are
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without merit. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate
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Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the petitions for a writ of habeas corpus are DENIED and the cases are
DISMISSED with prejudice as time-barred. A certificate of appealability is DENIED. All motions
not previously ruled on are DENIED.
SIGNED this 8th day of July, 2019.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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