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Nunn v. Genovese

United States District Court, E.D. Tennessee

July 13, 2017

DERRELL F. NUNN, SR., Petitioner,
v.
KEVIN GENOVESE, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner Derrell F. Nunn, Sr. brings this pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his confinement under a 2007 state court judgment of conviction for aggravated child abuse [Doc. 2]. Respondent filed a motion for extension of time to respond to the §2254 petition [Doc. 6] and a motion to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1) [Doc. 7]. Petitioner has not responded in opposition to Respondent's motions and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. The Court interprets the absence of any response as a waiver of objection.

         Based on the following, the Court will GRANT Respondent's motion for extension of time [Doc. 6] and motion to dismiss [Doc. 7], and will DISMISS this § 2254 petition as time-barred.

         I. MOTION FOR EXTENSION OF TIME

         Respondent moves the Court for an extension of forty-five (45) days to file his response to Petitioner's application for a writ of habeas corpus [Doc. 6]. As grounds for support, Respondent submits that as of the date the motion for extension was filed, he was still receiving portions of the record from Petitioner's direct appeal [Id. at 1]. This is Respondent's first request for an extension of time in which to file a response in this matter.

         For good cause shown and in light of the lack of opposition to the request, Respondent's motion [Doc. 6] will be GRANTED nunc pro tunc.

         II. PROCEDURAL HISTORY

         On August 13, 2007, a Hamilton County jury convicted Petitioner of aggravated child abuse and the trial court sentenced Petitioner to twenty years' imprisonment. On direct appeal, Petitioner challenged the sufficiency of the evidence. The Tennessee Court of Criminal Appeals affirmed Petitioner's conviction on December 14, 2009. On May 12, 2010, the Tennessee Supreme Court denied Petitioner's application for permission to appeal.

         Thereafter, on April 1, 2016, Petitioner filing a motion to reopen the post-conviction petition. There being no record of a prior post-conviction petition, the convicting court construed the motion as an original petition for post-conviction relief. On April 11, 2016, Petitioner's petition for post-conviction relief was denied because the motion was filed beyond the one-year statute of limitations.

         Now before the Court is Petitioner's petition for writ of habeas corpus asserting a constitutional error at trial [Doc. 2].

         III. STATUTE OF LIMITATIONS

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) contains a one-year statute of limitations governing the filing of an application for a federal writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). The limitations period begins to run when one of the four circumstances occurs: (1) the conclusion of direct review; (2) upon the removal of an impediment which prevented a petitioner from filing a habeas corpus petition; (3) when a petition alleges a constitutional right, newly recognized by the Supreme Court and made retroactive on collateral review; or (4) when a claim depends upon factual predicates which could not have been discovered earlier through the exercise of due diligence. Id. The one-year period is tolled, however, during the pendency of a properly filed application for state post-conviction relief. 28 U.S.C. § 2244(d)(2). Respondent contends that the petition is time-barred and thus subject to dismissal [Doc. 8 p. 2].

         The Tennessee Court of Criminal Appeals affirmed petitioner's convictions on direct appeal, and the Tennessee Supreme Court (“TSC”) denied permission to appeal in an order filed May 12, 2010. Ninety days later, on Tuesday, August 10, 2010, when the time expired for filing a petition for certiorari in the United States Supreme Court, see U.S. Sup. Ct. R. 13.1, Petitioner's conviction became final and on the next day, August 11, 2010, AEDPA's one-year clock began to run. See Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000) (citing to Fed.R.Civ.P. 6(a)) (finding that, for purpose of computing periods of time tied to § 2254's limitation statute, “the day of the act, event, or default from which the designated period of time begins to run shall not be included”).

         Petitioner filed this § 2254 petition on October 3, 2016, well after his ...


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