United States District Court, D. New Jersey
Madeline Cox Arleo, Judge
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.
BACKGROUND AND PROCEDURAL HISTORY
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). 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.
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.
appealed, and on June 10, 2008, the Appellate Division
affirmed his conviction and sentence. 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.
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
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.
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
(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