Court of Criminal Appeals of Tennessee, Nashville
BARRY N. WADDELL
STATE OF TENNESSEE
Assigned on Briefs May 10, 2017
from the Criminal Court for Davidson County No. 96-C-1372
Cheryl Blackburn, Judge.
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.
R. App. P. 3 Appeal as of Right; Appeal Dismissed.
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
E. Glenn, J., delivered the opinion of the court, in which
Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.
E. GLENN, JUDGE.
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.
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.
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.
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
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 ...