Corey Turner v. Warden, State Prison (2013)

Memorandum of Decision

EXCERPT

THE COURT:  Sir, I don't believe it's reasonably unavailable at the time.   This is seventeen years later you're telling me that you found new evidence—

THE PETITIONER:  Your Honor—

THE COURT:  which I don't believe.

THE PETITIONER:—you  don't know what the evidence is.   You don't know when it was acquired.   You don't know the—

THE COURT:  Well, like I said, sir, the only thing before me is your request for sentence review.   Otherwise, I don't have jurisdiction to look at it.   I don't see anything here.   So unless you don't want the—your right to a sentence review—like I said, the state has agreed to reinstate that—there's nothing else before me for me to decide.   And your motion to bifurcate is denied as is your motion to withdraw.   Today is your trial date.   It's a little too late, Attorney Barbarie, so I'm gonna keep you on the case.

THE PETITIONER:  So you're not gonna allow me to file an amended petition, is what I'm saying.

THE COURT:  No. This is your trial date, sir.

THE PETITIONER:  All right.   All right.   That's—I have nothing to do with him not complying with the court's scheduling order.   That's—that's beyond my control.   That was for him to—to come and see me, file the amended petition.   I have nothing to do with that.

THE COURT:  But you understand he was hampered by the fact that two judges previously had dismissed your habeas.

THE PETITIONER:  Your Honor, those judges can't make rulings that compel an impossibility.   They can't anticipate that I'm gonna discover new evidence after those proceedings.   And the—and the appellate court who ruled on Judge Fuger's ruling said that I can't be barred from filing future writs.

THE COURT:  Well, that's my ruling, sir.

THE PETITIONER:  I hear you.   I just would like to, uh, mark my own—my motions for, um—for the record for identification so I can appeal this.   I should have been able to, uh, amend my complaint based on the fact that my attorney failed to come see me, failed to hire an investigator, failed to acquire my rec—my, uh, file so that he can make a known and informed decision where my newly-discovered evidence is concerned.   And until such time that was done, no one is in a position to determine whether or not these are facts and circumstances not reasonably available at the time of the previous writ.   And I just want to make that straight for the record because I'm going to appeal this.

THE COURT:  That is your right.   You can do that.   So do you want your sentence review or not?

THE PETITIONER:  Yeah, I want the sentence review.   But I also want—

THE COURT:  Any objections by the state to reinstate that today or do you wish to—I know you filed a return.

ATTY. MACCHIARULO:  I did.   Your Honor.   I have no problem with Mr. Turner having sentence review, um, with respect to this complaint or this docket number and, obviously, with the understanding that the state will be relying on both Judge Fuger and Judge Schuman's order or any future petitions.

THE COURT:  Okay. All right, sir, I'm going to—since the state does not object to your requested relief, which is a sentence review, and according to their return they wish for this court to issue an order to that effect, I'm going to grant that your sentence review be reinstated.

Is there anything else?

THE PETITIONER:  Just that I would like to file my motion today—the motion I just was arguing—the motion to dismiss and appoint new habeas counsel.   This is the motion I was trying to file.   And it states the facts that he didn't—he failed to acquire—to obtain my file and file an amended petition in a timely fashion.   This is the motion that I intended to have heard so that he would be able to be relieved from the case, I would be appointed new counsel or be allowed to proceed pro se to present my newly discovered evidence.   And if the court is gonna deny the motion, I just want it marked for identification so it's part of the record.

THE COURT:  Attorney Barbarie.

ATTY. BARBARIE:  Yeah, certainly he can—yeah, I—

THE COURT:  You can file whatever you want, sir, but as far as I'm concerned you got what you wished for, so I don't see how it's ineffective.

THE PETITIONER:  I didn't get what I wished for.

THE COURT:  All right.

ATTY. BARBARIE:  Your Honor, may I approach the clerk?

THE COURT:  Please.   Would you please make a copy for the state?

THE PETITIONER:  I need a copy as well.   Like I said, he came to see me on the 3rd, I handwrote the motion, it was holidays—the 4th of July. I was only able to generate the one copy so ․

THE COURT:  That's fine, sir.   We'll get you a copy.   We'll send a copy to you, Mr. Barbarie.

ATTY. BARBARIE:  Thank you, Your Honor.

THE COURT:  Is there anything else?

ATTY. MACCHIARULO:  No, Your Honor.

ATTY. BARBARIE:  No, Your Honor.

THE COURT:  All right.   Thank you.   Court's adjourned.

J. Kwak

Kwak, Hunchu, J.