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Abernathy v. Sexton

United States District Court, E.D. Tennessee

July 25, 2019

COREY C. ABERNATHY, Petitioner,
v.
WARDEN SEXTON, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE

         This 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         On June 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].

         On 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].

         Aggrieved, 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].

         On 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.].

         By 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.

         II. LEGAL STANDARD

         The 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 ...

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