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Pisano v. Parris

United States District Court, Western District of Tennessee, Eastern Division

February 13, 2015

SALVATORE PISANO, JR., Petitioner,
v.
MIKE PARRIS, Respondent.

ORDER TO MODIFY THE DOCKET, ADDRESSING PENDING MOTIONS, PARTIALLY GRANTING RESPONDENT’S RENEWED MOTION TO DISMISS, DENYING PETITION PURSUANT TO 28 U.S.C. § 2254, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

J. DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE

Before the Court are the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”) (Pet., Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF No. 1), filed by Petitioner, Salvatore Pisano, Jr., Tennessee Department of Correction prisoner number 490172, an inmate at the Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee; Respondent’s Motion to Dismiss (Mot. to Dismiss, id., ECF No. 10), filed by Henry Steward, the previous Warden of the NWCX;[1] and the following motions filed by Pisano: (i) Petitioner’s “Motion for Default Judgement [sic] and Relief Requested” (Mot. for Default J., id., ECF No. 13); (ii) “Motion for Disposition (Status of a Case)” (Mot. for Disposition, id., ECF No. 19); and (iii) “Motion for Summary Judgement [sic] Granting the Petitioner Relief” (Mot. for Summ. J., id., ECF No. 20). For the reasons stated below, the Court DENIES the Motion for Default Judgment, GRANTS the Motion for Disposition, DENIES the Motion for Summary Judgement, GRANTS the Motion to Dismiss in part and DENIES the Petition.

I. BACKGROUND

A. State Court Procedural History

On July 19, 2010, a grand jury in Hardin County, Tennessee returned an eight-count indictment charging Pisano with the rape of K.L., a child more than three years of age but less than thirteen years of age, on various dates in January 2010. (Indictment, State v. Pisano, No. 9269 (Hardin Cnty. Circ. Ct.), ECF No. 11-1 at PageID 91-99.) The victim was the twelve-year-old girlfriend of Pisano’s son. On June 9, 2011, Petitioner appeared in the Circuit Court for Hardin County to plead guilty to four counts of aggravated sexual battery in exchange for a negotiated sentence of imprisonment of eight years on each count to run concurrently. (Request for Acceptance of Plea of Guilty [&] Pet. to Waive Trial by Jury & to Waive an Appeal, id., ECF No. 11-1 at PageID 122-24.) Judgments were entered on June 20, 2011. (J., id., ECF No. 11-1 at PageID 125 (Count 1); J., id., ECF No. 11-1 at PageID 126 (Count 2); J., id., ECF No. 11-1 at PageID 127 (Count 3); J., id., ECF No. 11-1 at PageID 128 (Count 4).) Pisano did not appeal, having waived the right to do so.

On August 22, 2011, the inmate filed a pro se petition in the Hardin County Circuit Court pursuant to the Tennessee Post-Conviction Procedure Act, Tennessee Code Annotated §§ 40-30-101 to -122. (Pet. for Relief from Conviction or Sentence, Pisano v. State, No. 9269 (Hardin Cnty. Circ. Ct.), ECF No. 11-1 at PageID 133-36.) On August 25, 2011, the post-conviction court dismissed the petition for failure to state a colorable claim. (Preliminary Order (No Colorable Claim), id., ECF No. 11-1 at PageID 137.) On September 6, 2011, Pisano filed an amendment to his post-conviction petition (Colorable Claim, id., ECF No. 11-1 at PageID 138-41) and a motion to reopen the post- conviction proceeding (Mot. to Reopen Post-Conviction Pet., id., ECF No. 11-1 at PageID 142-47). On September 28, 2011, the post-conviction court denied the motion to reopen. (Order, id., ECF No. 11-1 at PageID 148.) A corrected order was entered on October 19, 2011. (Order, id., ECF No. 11-1 at PageID 149.) On November 1, 2011, Pisano filed another amendment to his post-conviction petition (Colorable Claim, id., ECF No. 11-1 at PageID 150-53) and a second motion to reopen (Mot. to Reopen Post-Conviction Pet., id., ECF No. 11-1 at PageID 154-57). On November 15, 2011, the post-conviction court again denied the motion to reopen, finding that “no new grounds have been raised that remotely suggest any abridgement of a Constitutional right or provide any grounds for relief whatsoever.” (Order, id., ECF No. 11-1 at PageID 88.) The order also stated that “these continued pleadings constitute frivolous actions which will be sanctioned by the Court if any additional frivolous actions are filed.” (Id.) The Tennessee Court of Criminal Appeals (“TCCA”) dismissed Pisano’s appeal for want of jurisdiction. Pisano v. State, No. W2011-02535-CCA-R3-PC, 2012 WL 5507328 (Tenn. Crim. App. Nov. 13, 2012).

B. Procedural History of Pisano’s Petition

On April 11, 2014, Petitioner filed his pro se Petition, accompanied by the habeas filing fee. (Pet., Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF No. 1; Case initiation fee, id., ECF No. 2.) The Petition presents the following claims:

1. “Ineffective Assistance of Counsel” (Pet. at PageID 5, id., ECF No. 1; see also Id. at PageID 15);
2. “Violation Rule 11” (id. at PageID 6; see also Id. at PageID 6-7, 16-22); and
3. “New law” (id. at PageID 8; see also Id. at PageID 23).

In an order issued on April 30, 2014, the Court directed Respondent to submit a response to the Petition within twenty-three days. (Order, Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF No. 4.)

On June 9, 2014, Respondent filed a Motion to Dismiss the Petition as time-barred, accompanied by the state-court record. (Mot. to Dismiss, id., ECF No. 10; Not. of Filing, id., ECF No. 11.) On June 20, 2014, the inmate filed a document that appears to be a response to the Motion to Dismiss, titled “Habeas Corpus Petition Tolling Statute of ...


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