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Turner v. Nelsen

United States District Court, D. New Jersey

March 29, 2018

DESROY TURNER, Petitioner,
v.
KENNETH NELSON, Respondent.

          MEMORANDUM OPINION

          Madeline Cox Arleo, Judge

         I. INTRODUCTION

         This matter has been opened to the Court by Petitioner's filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. As explained below, the record submitted by Respondent shows that Petition is untimely under the one-year statute of limitation for the filing of federal habeas corpus petitions by state prisoners and that Ground One of the Petition is unexhausted, rendering the Petition mixed. At this time, the Court will dismiss the Petition without prejudice as untimely and direct the Clerk of the Court to administratively terminate this action. As explained below, the Court will provide Petitioner with 30 days within which to move to reopen this matter and submit any additional arguments and documentation with respect to (1) equitable tolling, (2) the exhaustion of Ground One, and (3) his assertion(s) of actual innocence.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         A grand jury indicted defendant Turner for first-degree murder, N.J.S.A. 2C:1 l-3a(1) or N.J.S.A. 2C:1 l-3a(2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five).[1] See State v. Turner, No. A-4167-11T3, 2014 WL 1613454, at *1 ( N.J.Super.Ct.App.Div. Apr. 23, 2014). The charges stemmed from defendant's involvement in the shooting death of Mario Minto in a nightclub where defendant's entertainment company was providing music for a party. Id. Defendant's theory of the case was that Christopher Hall shot Minto; however, an eyewitness, Romeo Prince, testified at trial that defendant shot the victim. Id.

         Following a jury trial, defendant was convicted on count one of the lesser charge of aggravated manslaughter, and on counts three and five. At sentencing, the trial judge merged count three into count one, and imposed a twenty-one year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count five, the judge imposed a consecutive five-year term of imprisonment with a one-year period of parole ineligibility. Id.

         Defendant appealed, and on June 10, 2008, the Appellate Division affirmed his conviction and sentence.[2] State v. Turner, 2008 WL 2339826, *7 (App. Div. June 10, 2008). There is no record that Petitioner filed a petition for certification with the New Jersey Supreme Court.[3]

         On March 4, 2010, defendant filed a PCR petition contending that trial counsel rendered ineffective assistance by failing to: (1) communicate with him about and independently investigate Hall in order to strengthen the third-party guilt defense; (2) request an interpreter at trial; (3) file several pre-trial motions; (4) retain an expert regarding his background and mental history; (5) object to the prosecutor's Brady violation; and (6) file a motion for a new trial. Defendant contended that trial counsel was deficient at sentencing for failing to properly argue aggravating and mitigating factors and zealously advocate for the minimum sentence. Defendant also argued that appellate counsel rendered ineffective assistance by failing to raise meritorious issues on appeal. Id. On August 9, 2011, the PCR court issued a written opinion denying the petition without an evidentiary hearing. (ECF No. 9-116.) Petitioner appealed, and on April 23, 2014, the Appellate Division affirmed the denial of PCR. State v. Turner, No. A-4167-11T3, 2014 WL 1613454, at *2 ( N.J.Super.Ct.App.Div. Apr. 23, 2014). The Supreme Court denied certification on December 16, 2014. State v. Turner, 220 N.J. 207 (2014).

         The instant habeas petition was executed on January 21, 2015. (ECF No. 1, Pet. at 17.) The Petition raises two grounds for relief. Ground One of the Petition alleges that the verdict was against the weight of the evidence and Ground two asserts claims of ineffective assistance of counsel. Respondent has submitted the Answer to the Petition in which it argues that (1) the Petition is untimely, that (2) Petitioner's sufficiency of the evidence claim is unexhausted, and that (3) the Petition fails on the merits.

         III. ANALYSIS

         a. Timeliness

         Based on the record provided by Respondent, the Petition is untimely as Petitioner waited more than one year to file his PCR after the conclusion of direct review. Under AEDPA, Congress prescribed a one-year period of limitation for the filing of federal habeas corpus petitions by state prisoners. See Douglas v. Horn, 359 F.3d 257, 261 (2004); 28 U.S.C. § 2241(d)(1). Pursuant to 28 U.S.C. § 2241(d)(1), [t]he 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 ...

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