United States District Court, E.D. Tennessee
COREY C. ABERNATHY, Petitioner,
WARDEN SEXTON, Respondent.
A. VARLAN UNITED STATES DISTRICT JUDGE
matter comes before the Court on the pro se petition of Corey
C. Abernathy for a writ of habeas corpus under 28 U.S.C.
§ 2254, and Respondent's motion to dismiss the
petition as time-barred. For the reasons set forth below,
Respondent's motion will be granted, and the instant
petition will be dismissed with prejudice.
FACTUAL AND PROCEDURAL HISTORY
15, 2012, in the Criminal Court for Hamilton County,
Tennessee, Petitioner pleaded guilty to two burglary counts
and received concurrent sentences of two years'
incarceration as a Range I standard offender, with release
eligibility authorized after service of 30 percent of the
sentences [Doc. 18-1 p. 5].
April 22, 2013, Petitioner filed a petition for
post-conviction relief [Doc. 18-1 p. 6-14). Counsel was
appointed for Petitioner, the State filed an answer to the
petition, and the trial court conducted a hearing at which
Petitioner and trial counsel testified [Doc. 18-1 p. 18-23;
Doc. 18-2 p. 3-66]. By order and memorandum filed December
22, 2015, the trial court dismissed the post-conviction
petition [Doc. 18-1 p. 49-59].
Petitioner appealed. On July 10, 2017, the Tennessee Court of
Criminal Appeals affirmed the trial court's dismissal of
the post-conviction petition [Doc. 18-6 p. 1-10; Doc. 18-7].
Petitioner's subsequent application for permission to
appeal to the Tennessee Supreme Court was denied by order
filed November 16, 2017 [Doc. 18-10].
November 21, 2018, Petitioner filed a pleading requesting
habeas relief that this Court docketed as a petition for writ
of habeas corpus under 28 U.S.C. § 2254 [Doc. 1]. The
pleading was dated November 15, 2018, and the mailing
envelope from Petitioner's place of confinement bore a
postmark of November 19, 2018 [Id.].
Order dated January 14, 2019, this Court directed Petitioner
to file an amended petition using a standardized form, and
Petitioner complied by filing his amended petition on
February 15, 2019 [Doc. 9; Doc. 11]. Thereafter, the Court
ordered Respondent to answer or respond to the amended
petition, and Respondent did so by filing a motion to dismiss
the petition as untimely on May 7, 2019 [Doc. 17; Doc. 20].
Petitioner did not file a response.
instant petition for writ of habeas corpus is subject to the
statute of limitations of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Lindh v.
Murphy, 521 U.S. 320, 337 (1997). The issue of whether
Respondent's motion should be granted turns on the
statute's limitation period, which provides:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall 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
the 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