United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. Trauger United States District Judge
April 17, 2017, the petitioner initiated this action with the
pro se filing of a petition (Docket Entry No. 1)
under 28 U.S.C. § 2254, for writ of habeas corpus.
preliminary review of the petition, the Court determined that
it had not been filed in a timely manner. Accordingly, an
order (Docket Entry No. 10) was entered granting the
petitioner thirty (30) days in which to show cause why the
petition should not be denied for that reason.
being given an extension of time, the petitioner has filed a
Motion (Docket Entry No. 13) to show cause.
August 20, 2002, the petitioner pled either guilty or nolo
contendere to seventy (70) sex related crimes in the Criminal
Court of Montgomery County. Docket Entry No. 1 at 1-2. For
these crimes, he received a sentence of ninety two (92) years
in prison. Id. at 1. Unknown to the petitioner at
the time, his sentence included community supervision for
life. Tenn. Code Ann. § 39-13-524(b). Community
supervision for life requires a convicted sex offender
released from custody to report regularly to a state agency.
Tenn. Code Ann. § 40-39-203(b)(2).
filing of a § 2254 habeas corpus action is subject to a
one year period of limitation. 28 U.S.C. § 2244(d)(1).
This period begins to run from the latest of -
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
Court applied option (A) and found that this action was not
timely filed by the petitioner. The petitioner does not
challenge the Court's conclusion that, using option (A),
this action is untimely. Rather, the petitioner asserts that
option (D), and not option (A), actually dictates when the
limitation period began to run in this case. Docket Entry No.
1 at 12. Applying option (D), this action should be deemed
the petitioner's four claims allege that counsel and the
trial court erred by failing to advise him “of the
mandatory direct and punitive consequences of community
supervision for life as a part of his sentence prior to
accepting his pleas.” Docket Entry No. 1 at 4 and 7.
The petitioner avers that he did not learn that community
supervision for life was included as a part of his sentence
until April, 2016. Id. at 13. He believes that this
was a factual predicate for those claims which requires the
Court to apply option (D) rather than option (A) when
calculating the timeliness of this action.
noted in the show cause order (Docket Entry No. 10), a
factual predicate, within the meaning of the statute, is an
evidentiary fact or event and not a court ruling or legal
consequence of the facts. Holmes v. Spencer, 685
F.3d 51, 59 (1st Cir. 2012)(that counsel's
advice may have been flawed, and could potentially form the
foundation for an ineffective assistance claim, are the legal
consequences of those facts - matters of law that are beyond
the purview of 28 U.S.C. § 2244(d)(1)(D)); see also
Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.
2000). The factual predicate for petitioner's claims is
that he was sentenced as a sex offender. The legal
consequences of the sentencing were incarceration, placement
on the sex offender registry and community supervision for
life. Thus, the Court properly applied option (A) when
calculating the timeliness of petitioner's habeas corpus
event, option (D) allows for the use of a later starting date
when the factual predicate for his claims “could have
been discovered through the exercise of due diligence.”
The petitioner bears the burden of convincing the Court that
he was exercising due diligence when he learned of the