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Robert Nunn v. Smith

United States District Court, E.D. Kentucky, Central Division, Lexington

January 17, 2018

LEXINGTON STEPHEN ROBERTS NUNN, Petitioner,
v.
AARON SMITH, Warden, Respondent.

          RECOMMENDED DISPOSITION

          ROBERT E. WIER, UNITED STATES MAGISTRATE JUDGE.

         On August 23, 2017, [1] Petitioner, Stephen Nunn, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. DE 1 (Petition). The Court conducted an initial review of the filing and perceived the petition as probably untimely. DE 8 (Order). The Court thus directed briefing on timeliness and equitable tolling (if applicable). Id. Each side responded. DE 18 (Nunn Response); 25 (Warden Response, seeking timeliness-based dismissal). The Court also granted Nunn permission to supplement his response on the timeliness issue, and to reply. DE 23 (Motion to Supplement); DE 27 (Order); DE 28 (Motion for Reply); DE 29 (Order granting reply). Having reviewed the entire record under the applicable standards, the Court RECOMMENDS that the District Court DISMISS the time-barred petition (DE 1) WITH PREJUDICE and DENY a certificate of appealability. The AEDPA statute of limitations bars the petition, and no tolling basis spares the filing.

         I. BACKGROUND

         A. Factual & Procedural History

         The Kentucky Court of Appeals articulated the underlying facts and history through the trial court's January 26, 2015, denial of Nunn's state post-conviction motion:

On September 11, 2009, Nunn murdered Amanda Ross near her residence in Lexington, Kentucky. On November 10, 2009, Nunn was indicted by a Fayette County Grand Jury for the murder . . . A civil suit was filed by Ross's Estate against Nunn for her wrongful death on September 28, 2009.
On November 17, 2009, attorney Warren Scoville entered his appearance for Nunn in the criminal proceeding. . . . In order to pay Scoville's fee of $200, 000 for representation in the criminal proceeding, Nunn transferred his house in Glasgow, Kentucky, to Scoville. [T]he sale netted proceeds of approximately $137, 000 . . . [which] were used to pay Scoville's fee . . . In December 2009, the plaintiffs in the civil case against Nunn joined the Scoville Law Firm as a co-defendant . . . When the[y] became satisfied that the transfer was not fraudulent, they agreed to dismiss the Scoville Law Firm . . . without prejudice in February 2010.
. . . Nunn pleaded guilty to life imprisonment without parole on June 28, 2011, which the trial court accepted.
On October 27, 2011, Scoville sent a letter to Nunn stating, in part, the following: “I spoke with Burl McCoy [the attorney representing the plaintiffs in the civil suit against Nunn] last week and he indicated to me that the civil cases would be dismissed. He indicated that he would speak with Mrs. Ross as soon as he could get up with her to discuss the matter. All I can do is trust Burl to do what he said he would do.”
. . . .
On April 9, 2012, Scoville sent Nunn a letter stating, in part: “I was shocked Thursday when I received the Motions from Ms. Ross'[s] attorney for a Summary Judgment . . . in the civil case. . . . I had [a] verbal agreement with Burl McCoy that the civil case would ‘go away' after you entered your plea. . . .”
On August 20, 2013, a summary judgment was entered against Nunn in the civil case, awarding damages against him in the amount of $24, 253, 298.85. On October 22, 2013, Nunn filed a pro se motion to vacate his judgment and sentence in this proceeding pursuant to RCr 11.42, wherein he argued that his attorney had misadvised him concerning the direct and collateral consequences of his conviction, failed to demand a competency hearing and failed to investigate his defense of extreme emotional distress. . . . The Department of Public Advocacy (DPA) filed a motion to supplement Nunn's pro se RCr 11.42 motion, and included the claim that Scoville's representation of Nunn in the criminal case constituted a conflict of interest[.] . . .
An extensive evidentiary hearing was held on Nunn's RCr 11.42 motion on October 30, 2014[.] . . . Scoville testified that Nunn told him that he did not want to put his daughters through a trial and that McCoy had indicated that Diana Ross, the representative for the estate of Amanda Ross, was willing to drop the civil suit against Nunn if he agreed to plead guilty. Scoville also testified that Nunn understood that the dismissal of the civil suit was not a condition for Nunn's guilty plea in the criminal proceeding.
McCoy testified that he . . . never told Scoville that there was an agreement to dismiss the civil suit if Nunn pled guilty.
. . . .
Nunn testified that he pleaded guilty in order to spare his daughters and the Ross family the anguish of a trial, and that he had hoped the civil suit and the criminal case would be resolved together. He also testified that he would not have pled guilty if he had known that the civil suit was not going to be dismissed.

Nunn v. Commonwealth, No. 2015-CA-000225-MR, 2016 WL 3751993, at *1-3 (Ky. Ct. App. July 8, 2016), review denied (Feb. 9, 2017), cert. denied sub nom. Nunn v. Kentucky, 137 S.Ct. 2312, 198 L.Ed.2d 740 (2017) (internal citations omitted). Nunn also specifically “testified that he learned that the civil action wasn't dismissed when he received a copy of a Motion for Partial Summary Judgment filed by Burl McCoy on behalf of Amanda Ross'[s] Estate sometime in April of 2012.” Id. at *5 (internal citations omitted).

         B. AEDPA Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) subjects section § 2254 petitions to a one-year limitation period. 28 U.S.C. § 2244(d). Specifically, the statute provides:

(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 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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Id.

         C. Key Procedural Events

         Kentucky entered a criminal judgment against Nunn on June 28, 2011. DE 1, at 1; see also DE 1-2, at 63 (7/28/2011 state court judgment). Per his petition, Nunn did not appeal.[2] The judgment thus became final upon passage of the 30-day window to take such an appeal-here, on July 28, 2011. See RCr 12.04.

         Eight-hundred and seventeen (817) days (over two years) passed before Nunn filed a RCr 11.42 post-conviction relief motion, on October 22, 2013.[3] The trial court denied the motion on January 26, 2015, and Nunn appealed. See DE 1, at 4; Nunn v. Commonwealth, No. 09-CR-01678 (Fayette Cir. Ct. Jan. 26, 2015) (hereinafter Goodwine Opinion).[4] The Kentucky Court of Appeals affirmed 11.42 denial on July 8, 2016. Nunn, 2016 WL 3751993, at *6. The Kentucky Supreme Court denied discretionary review on February 9, 2017, and the United States Supreme Court denied Nunn's petition for certiorari on June 26, 2017.[5] See id. at *1. Nunn filed the current § 2254 petition on August 23, 2017, over one-hundred and eighty (180) days after 11.42 proceedings ended.

         D. Court's Initial Review ...


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