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Turner v. Brown

United States Court of Appeals, Seventh Circuit

January 3, 2017

Duane E. Turner, Petitioner-Appellant,
Richard Brown, Respondent-Appellee.

          Argued October 26, 2016

         Appeal 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.

          Before Flaum, Easterbrook, and Williams, Circuit Judges.


         Duane 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.

         I. Background

         In 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 22, 1997.

         In 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 criminal confinement.

         On 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 access.

         On 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.

         In 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 appeal.

         II. Discussion

         AEDPA 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).

         Turner 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 petitioner's ...

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