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Thacker v. State

April 30, 2008

JERRY THACKER, PETITIONER,
v.
STATE OF TENNESSEE, RESPONDENT.



The opinion of the court was delivered by: Varlan/shirley

MEMORANDUM

This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed in the U.S. District Court for the Western District of Tennessee and transferred to this court. The Clerk is DIRECTED to serve a copy of the petition and this Memorandum and accompanying Judgment Order on the Attorney General of the State of Tennessee. However, for the reasons stated below, the Attorney General shall not be required to file an answer or other pleading to the petition, the petition will be DENIED, and this action will be DISMISSED.

Petitioner is challenging the sentence he received on his 1986 conviction in Roane County, Tennessee, for second degree murder. The grounds for his challenge are recent decisions of the Supreme Court, specifically Cunningham v. California, 127 S.Ct. 856 (2007), Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000).*fn1

There is a "1-year period of limitation [that] shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The limitation period generally runs from the date on which the judgment of conviction became final, or if later, as in this case, from "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." Id. § 2244(d)(1)(C).

Apprendi was decided on June 26, 2000; Blakely was decided on June 24, 2004; and Cunningham was decided on January 22, 2007. Petitioner's cover letter accompanying his habeas corpus petition, which was addressed to the Clerk of U.S. District Court for the Western District, bears a signature date of February 7, 2008. Petitioner's habeas corpus petition was filed more than one year after the decisions in Apprendi, Blakely, and Cunningham, and thus is clearly barred by the statute of limitation.

In any event, neither Apprendi, Blakely, nor Cunningham is applicable retroactively. See, respectively, Goode v. United States, 305 F.3d 378, 381 (6th Cir. 2002) (Apprendi does not apply retroactively); Spiridigliozzi v. U.S.,117 Fed.Appx. 385, 394 (6th Cir. 2004) (Blakely does not apply retroactively); Davis v. United States, Civil Action No. 1:07-cv-107, 2007 WL 2138619 (E.D. Tenn. July 23, 2007) (survey of courts finding that Cunningham does not apply retroactively). Accordingly, even if petitioner's habeas petition was not time-barred, he still would not be entitled to relief on the grounds raised.

Because it plainly appears from the face of the petition and the annexed exhibits that petitioner is not entitled to any habeas corpus relief in this court, the petition for the writ of habeas corpus will be DENIED and this action DISMISSED. Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts. A certificate of appealability SHALL NOT ISSUE in this action. 28 U.S.C. § 2253(c); Rule 22(b) of the Federal Rules of Appellate Procedure. The court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure. Therefore, this court will DENY the petitioner leave to proceed in forma pauperis on appeal.

AN APPROPRIATE ORDER WILL ENTER.

Thomas A. Varlan UNITED STATES ...


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