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Waddell v. State

Court of Criminal Appeals of Tennessee, Nashville

August 9, 2017

BARRY N. WADDELL
v.
STATE OF TENNESSEE

          Assigned on Briefs May 10, 2017

         Appeal from the Criminal Court for Davidson County No. 96-C-1372 Cheryl Blackburn, Judge.

         The pro se Petitioner, Barry N. Waddell, appeals the denial of his second motion to reopen his petition for post-conviction relief. Following our review, we dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

          Barry N. Waddell, Pikeville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan McNabb King, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         In March 1997, the Petitioner was convicted by a Davidson County Criminal Court jury of two counts of rape of a child and two counts of aggravated sexual battery based on his abuse of a seven-year-old girl who was a friend of the Petitioner's stepdaughter. He was subsequently sentenced by the trial court to an effective term of seventy years in the Department of Correction. This court affirmed his convictions on direct appeal but reduced his effective sentence to sixty-six years. See State v. Barry Waddell, No. 01C01-9801-CR-00016, 1999 WL 343913, at *1 (Tenn. Crim. App. June 1, 1999), no perm. app. filed.

         On August 11, 2000, the pro se Petitioner filed a petition for post-conviction relief in which he sought a delayed appeal of a Rule 11 application, and the post-conviction court summarily dismissed it as time-barred on December 12, 2000. This court affirmed the summary dismissal, and our supreme court denied the Petitioner's application for permission to appeal. See Barry N. Waddell v. State, No. M2001-00096-CCA-R3-PC, 2001 WL 1246393, at *1 (Tenn. Crim. App. Oct. 17, 2001), perm. app. denied (Tenn. Apr. 8, 2002).

         A number of years later, the Petitioner filed his first motion to reopen his post-conviction petition, which was denied by the trial court. On April 29, 2008, this court entered an order affirming the judgment of the trial court. On October 27, 2008, our supreme court denied the Petitioner's application for permission to appeal.

         On October 3, 2016, the Petitioner filed the "Motion to Reopen Post-Conviction Petition" that is at issue in this case. In his affidavit in support of the motion, he argued that Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014), established a new rule of constitutional law affording him the right to "file a post-conviction [petition] under a motion to reopen [a] post-conviction[.]" The Petitioner asserted that Sutton's new rule of constitutional law required the "tolling of the (1) year statu[t]e of limitations in which to file a post[-]conviction" in cases such as his, in which he "never had the chance to raise ineffective assistance of trial counsel because of the state's procedural framework[.]"

         On October 11, 2016, the trial court entered an order denying the motion to reopen on the basis that it was not only time-barred but also failed to state a cognizable claim for relief. On December 12, 2016, the Petitioner filed a "Notice of Appeal Pursuant to ...


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