Duane E. Turner, Petitioner-Appellant,
Richard Brown, Respondent-Appellee.
October 26, 2016
from the United States District Court for the Southern
District of Indiana, Terre Haute Division. No.
2:14-cv-00020-WTL-DKL - William T. Lawrence, Judge.
Flaum, Easterbrook, and Williams, Circuit Judges.
E. Turner has filed a petition for a writ of habeas corpus in
federal court raising claims of ineffective assistance of
counsel in challenging his sentence for murder. The district
court denied his petition as untimely, concluding that the
last day on which Turner could have filed his federal habeas
petition was September 23, 1998, one year after his murder
conviction and sentence became final. We granted a
certificate of appealability, asking the parties to address
whether Turner's petition was timely filed under
jimenez v. Quarterman, 555 U.S. 113 (2009). For the
reasons that follow, we affirm the district court's
denial of the petition as untimely.
1995, a jury found Turner guilty of murder, criminal
confinement, and class A felony attempted robbery resulting
in serious bodily injury Turner was sentenced on those counts
to life imprisonment without parole, twenty years'
imprisonment, and forty-five years' imprisonment,
respectively. Turner appealed to the Indiana Supreme Court,
which affirmed his convictions. He did not seek a writ of
certiorari to the United States Supreme Court, and his
opportunity to do so expired ninety days later, on September
2000, Turner filed a pro se petition for post-conviction
relief in state trial court. In 2011, the trial court
dismissed all of Turner's claims for relief, and Turner
appealed. The Indiana Court of Appeals affirmed in part and
reversed in part, finding that Turner's counsel had been
ineffective in failing to raise on appeal the double jeopardy
issue of a single victim's death forming the basis of
both the murder and attempted robbery with serious bodily
injury convictions. The Court of Appeals remanded the case
with instructions to reduce Turner's Class A felony
robbery conviction to a Class B felony robbery conviction. On
July 1, 2013, the trial court did so, and resentenced Turner
on this count from forty-five years' to ten years'
imprisonment. The 2013 order did not reference or alter
Turner's other convictions or sentences for murder and
January 31, 2014, Turner filed a pro se petition for habeas
relief in the Southern District of Indiana seeking
resen-tencing on his murder conviction. Turner asserted two
separate grounds for relief: (1) that his life sentence for
murder was unconstitutional under Apprendi; and (2)
that Turner had been denied effective assistance of counsel
because his counsel during trial and appeal had made multiple
errors that had prejudiced Turner's case. On February 4,
2014, the district court issued a sua sponte order requiring
Turner to show that his petition for writ of habeas corpus
was timely under 28 U.S.C. § 2244(d)(1)(A). In response,
Turner argued, among other things, that he had not had access
to a law library from 1997 to 2000, and that his case had
been pending in state collateral review from 2000 to 2013.
Respondent argued that the petition was untimely and lacked
merit, and submitted an affidavit from a prison official
challenging Turner's claim that he had lacked library
February 18, 2014, the district court ruled that the deadline
for Turner to file his habeas petition had expired on
September 23, 1998, one year after the last day on which he
could have filed a petition for writ of certiorari. The
district court held that the state post-conviction relief
process could not toll the federal deadline because
Turner's time under The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) had expired before he had filed
for post-conviction relief. As a result, the court denied the
petition and dismissed it with prejudice as untimely, and
without considering the merit of Turner's claims.
March 2015, Turner filed a notice of appeal, and the district
court denied Turner's request for a certificate of
appealability on the ground that the appeal was not taken in
good faith. In April 2015, Turner attempted to appeal that
decision but incorrectly filed his motion in the district
court, which denied the motion and instructed him to re-file
it in this Court if that was his intent. In May 2015, we
issued a final order dismissing the appeal. In July 2015,
Turner filed a pro se motion to recall the mandate, which we
granted, vacating our earlier final order, and reinstating
Turner's appeal. On December 3, 2015, we entered an order
finding that Turner "has made a substantial showing of
the denial of his right to effective assistance of
counsel" pursuant to 28 U.S.C. § 2253(c), and
instructing the parties to also address whether Turner's
petition was timely filed under ]imenez v.
Quarterman, 555 U.S. 113 (2009). We granted Turner a
certificate of appealability and the right to proceed in
forma pauperis, and appointed counsel to assist with the
establishes a one-year time limitation for a state prisoner
to file an application for a writ of habeas corpus. 28 U.S.C.
§ 2244(d)(1). That year runs from the latest of four
specified dates, only one of which is relevant to this case:
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review." § 2244(d)(1)(A).
contends that in his case, "the date on which the
judgment became final" was altered by the state
court's grant of relief and resentencing on the robbery
count during collateral review. He argues that because the
judgment that "became final in 1997 was ... changed in
2013, ... the date for calculating the timeliness of
Turner's habeas petition changed with it." He relies
on Burton v. Stewart,549 U.S. 147 (2007), as
confirming that the new judgment renders his petition timely.
There, the Supreme Court explained that AEDPA's one-year
statute of limitations period does not begin until a