United States District Court, E.D. Tennessee
DERRELL F. NUNN, SR., Petitioner,
KEVIN GENOVESE, Respondent.
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
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
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.
MOTION FOR EXTENSION OF TIME
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.
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.
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.
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.
before the Court is Petitioner's petition for writ of
habeas corpus asserting a constitutional error at trial [Doc.
STATUTE OF LIMITATIONS
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].
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”).
filed this § 2254 petition on October 3, 2016, well
after his ...