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Turner v. Superintendent

United States District Court, N.D. Indiana, Hammond Division

January 23, 2017

DENNIS J. TURNER, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN, UNITED STATES DISTRICT JUDGE

         Dennis J. Turner, a pro se prisoner, filed a habeas corpus petition challenging his guilty plea and three-year sentence for residential entry on February 18, 2011, by the Boone Superior Court under cause number 06D01-0712-FB-152. However, habeas corpus petitions are subject to a strict one-year statute of limitations, and this petition is untimely.

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

         In response to question 16 asking him to explain why the petition is timely (which includes the text of the statute quoted above), Turner wrote, “Petitioner filed his petition for Post-Conviction Relief no more than one year from the time which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.” (DE 1 at 5.) To qualify as a claim based on newly discovered evidence, the claim must be presented within one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The Seventh Circuit has made clear that the time runs from the date when the evidence could have been discovered through diligent inquiry, not when it was actually discovered or when its significance was realized. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001).

         The only ground raised by Turner is that his counsel was ineffective for advising him “to plead guilty to charge of Residential Entry four (4) years after charges were filed. No evidence of guilt was presented by the State of Indiana during pre-trial stage of proceedings.” (DE 1 at 3.)

         Though he may not have understood their legal significance, all of the facts necessary for this claim were known by Turner when he pleaded guilty. As the Seventh Circuit explained in Owens:

If ยง 2244(d)(1) used a subjective rather than an objective standard, then there would be no effective time limit, as Owens's case illustrates. Like most members of street gangs, Owens is young, has a limited education, and knows little about the law. If these considerations delay the period of limitations until the prisoner has spent a few years in the institution's law ...

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