Nunn v. Genovese

Filing 10

MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 7/13/17. (c/m to pro se petitioner)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
DERRELL F. NUNN, SR.,

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Petitioner,
v.
KEVIN GENOVESE,
Respondent.

No.:

3:16-CV-590-TAV-CCS

MEMORANDUM OPINION
Petitioner Derrell F. Nunn, Sr. brings this pro se application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his confinement under a 2007
state court judgment of conviction for aggravated child abuse [Doc. 2]. Respondent filed a motion
for extension of time to respond to the §2254 petition [Doc. 6] and a motion to dismiss the petition
as time-barred under 28 U.S.C. § 2244(d)(1) [Doc. 7]. Petitioner has not responded in opposition
to Respondent’s motions and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. The
Court interprets the absence of any response as a waiver of objection.
Based on the following, the Court will GRANT Respondent’s motion for extension of time
[Doc. 6] and motion to dismiss [Doc. 7], and will DISMISS this § 2254 petition as time-barred.
I.

MOTION FOR EXTENSION OF TIME
Respondent moves the Court for an extension of forty-five (45) days to file his response to

Petitioner’s application for a writ of habeas corpus [Doc. 6]. As grounds for support, Respondent
submits that as of the date the motion for extension was filed, he was still receiving portions of the
record from Petitioner’s direct appeal [Id. at 1]. This is Respondent’s first request for an extension
of time in which to file a response in this matter.

For good cause shown and in light of the lack of opposition to the request, Respondent’s
motion [Doc. 6] will be GRANTED nunc pro tunc.
II.

PROCEDURAL HISTORY
On August 13, 2007, a Hamilton County jury convicted Petitioner of aggravated child

abuse and the trial court sentenced Petitioner to twenty years’ imprisonment. On direct appeal,
Petitioner challenged the sufficiency of the evidence. The Tennessee Court of Criminal Appeals
affirmed Petitioner’s conviction on December 14, 2009. On May 12, 2010, the Tennessee
Supreme Court denied Petitioner’s application for permission to appeal.
Thereafter, on April 1, 2016, Petitioner filing a motion to reopen the post-conviction
petition. There being no record of a prior post-conviction petition, the convicting court construed
the motion as an original petition for post-conviction relief. On April 11, 2016, Petitioner’s
petition for post-conviction relief was denied because the motion was filed beyond the one-year
statute of limitations.
Now before the Court is Petitioner’s petition for writ of habeas corpus asserting a
constitutional error at trial [Doc. 2].
III.

STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) contains a one-year statute

of limitations governing the filing of an application for a federal writ of habeas corpus. See 28
U.S.C. § 2244(d)(1). The limitations period begins to run when one of the four circumstances
occurs: (1) the conclusion of direct review; (2) upon the removal of an impediment which
prevented a petitioner from filing a habeas corpus petition; (3) when a petition alleges a
constitutional right, newly recognized by the Supreme Court and made retroactive on collateral
review; or (4) when a claim depends upon factual predicates which could not have been discovered
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earlier through the exercise of due diligence. Id. The one-year period is tolled, however, during
the pendency of a properly filed application for state post-conviction relief.

28 U.S.C. §

2244(d)(2). Respondent contends that the petition is time-barred and thus subject to dismissal
[Doc. 8 p. 2].
The Tennessee Court of Criminal Appeals affirmed petitioner’s convictions on direct
appeal, and the Tennessee Supreme Court (“TSC”) denied permission to appeal in an order filed
May 12, 2010. Ninety days later, on Tuesday, August 10, 2010, when the time expired for filing
a petition for certiorari in the United States Supreme Court, see U.S. Sup. Ct. R. 13.1, Petitioner’s
conviction became final and on the next day, August 11, 2010, AEDPA’s one-year clock began to
run. See Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000) (citing to Fed. R. Civ. P. 6(a))
(finding that, for purpose of computing periods of time tied to § 2254’s limitation statute, “the day
of the act, event, or default from which the designated period of time begins to run shall not be
included”).
Petitioner filed this § 2254 petition on October 3, 2016, well after his one-year limitations
period expired.
IV.

EQUITABLE TOLLING
Petitioner argues that he should be excused from the timeliness requirement and receive

equitable tolling on the ground that he is actually innocent of aggravated child abuse. The oneyear statute of limitations in AEDPA is not jurisdictional and is subject to equitable tolling on a
“gateway” claim of actual innocence. McQuiggin v. Perkins, 133 S.Ct. 1924, 1930–31 (2013); cf.
Souter v. Jones, 395 F.3d 577, 588–90, 597–601 (6th Cir. 2005) (a credible claim of actual
innocence can equitably toll the statute of limitations). The Supreme Court has explained,
however, that “tenable actual-innocence gateway pleas are rare.” McQuiggin, 133 S.Ct. at 1928.
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“In keeping with Supreme Court authority, the Sixth Circuit has also recognized that the actual
innocence exception should remain rare and only be applied in the extraordinary case.” Sachs v.
McKee, No. 2:13-CV-12540, 2014 WL 1746518, at *4 (E.D. Mich. Apr. 30, 2014) (internal
quotation marks omitted). A valid claim of actual innocence requires a petitioner “to support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented
at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The petitioner must show that, in light of the
new evidence, “it is more likely than not that no reasonable juror would have convicted [him].”
McQuiggin, 133 S.Ct. at 1933 (quoting Schlup, 513 U.S. at 329). “To assess that question, a court
must survey ‘all the evidence, old and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under rules of admissibility that would govern at trial.’”
Eberle v. Warden, Mansfield Corr. Inst., 532 F. App’x 605, 613 (6th Cir. 2013) (quoting House v.
Bell, 547 U.S. 518, 538 (2006)). Because actual innocence provides an exception to the statute of
limitations rather than a basis for equitable tolling, a petitioner who can make a showing of actual
innocence need not demonstrate reasonable diligence in bringing his claim, though a court may
consider the timing of the claim in determining the credibility of the evidence of actual innocence.
McQuiggin, 133 S. Ct. at 1931–32.
Petitioner relies upon medical reports, specifically Pediatric Imaging Reports from 2003,
to support his claim of actual innocence. Petitioner argues “the jury would have found a reasonable
doubt as to the charge of aggravated child abuse” had counsel introduced the existence of those
records demonstrating no signs of physical abuse [Doc. 2-1 p. 3]. Petitioner asserts that it is
“immaterial” that the Pediatric Imaging Report was taken almost a year after the alleged physical

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abuse because the x-rays would have still shown the presence of abuse had it occurred as alleged
by the State [Id.].
As the convicting court noted when denying Petitioner’s construed post-conviction
petition, and in agreeance with Respondent’s argument for dismissal:
Although [Tenn. Code. Ann. § 40-30-102(b)] recognizes the existence of new
scientific evidence of actual innocence as grounds for tolling the statute of
limitations, the Court finds that the subject petition does not allege such evidence.
The petitioner was aware of the reports that he now presents as new in
approximately 2003 or 2004, several years before the 2007 trial. Furthermore, the
reports are not evidence of the victim’s lack of injuries at the time of the offense in
September 2002, only evidence of the defendant’s condition almost one year later,
in July 2003. Their irrelevance on the issues of the existence and extent of the
victim’s injuries at that time of the office explains counsel’s failure to introduce
them [Doc. 8 p. 4 (citing Doc. 2 p. 14)].
For these same reasons, this Court finds that the Pediatric Imaging Reports from 2003 do
not constitute new evidence and thus do not meet the high burden for equitable tolling by means
of actual innocence. As such, the Court will dismiss this action as untimely.
V.

FAILURE TO RESPOND
As an alternative basis for dismissal, the Court notes that it may properly dismiss this case

for want of prosecution. See, e.g., Custom v. Detroit Edison Co., 789 F.2d 377, 379 (6th Cir.
1986); Fed. R. Civ. P. 41(b). Failure to respond or otherwise oppose a motion operates as both a
waiver of opposition to and an independent basis for granting the unopposed motion. See, e.g.,
Notredan, LLC v. Old Republic Exch. Facilitator Co., 531 F. App’x 567, 569 (6th Cir. 2013); see
also E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion may be deemed a waiver of any
opposition to the relief sought.”).
Almost six months have passed since Respondent filed the instant motion to dismiss on
December 30, 2016 [Doc. 7]. Petitioner has not responded and, by way of the same, is found to
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have waived opposition to Respondent’s request. Millworks Constr., LLC v. Env’t, Safety &
Health, Inc., No. 3:12-CV-177, 2015 WL 11019129, at *1–2 (E.D. Tenn. Mar. 23, 2015).
VI.

CERTIFICATE OF APPEALABILITY
Finally, the Court does not believe that jurists of reason would question whether the petition

is timely or whether equitable tolling saves this otherwise untimely petition. Nor would reasonable
jurists conclude that the timeliness or equitable-tolling issues “are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Court
finds that jurists of reason would not debate whether the petition states a valid claim of the denial
of a constitutional right and whether the Court was correct in its procedural ruling concerning the
timeliness of the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Murphy v. Ohio, 263
F.3d 466, 467 (6th Cir. 2001); Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001). Therefore,
the Court will DENY issuance of a certificate of appealability. 28 U.S.C. § 2253; Fed. R. App. P.
22(b).
VII.

CONCLUSION
For these reasons, Respondent’s motion for extension of time [Doc. 6] will be GRANTED

nunc pro tunc and his motion to dismiss [Doc. 7] will be GRANTED. Furthermore, the Court
will DENY the petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 [Doc. 2] as
untimely and will DISMISS this case.
AN APPROPRIATE ORDER WILL ENTER.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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