5:17-cv-00356
E.D. Ky.Jan 17, 2018Background
- In 2009 Stephen Nunn murdered Amanda Ross, pled guilty to life without parole on June 28, 2011, and did not appeal; judgment became final July 28, 2011.
- Nunn alleged trial counsel Warren Scoville misadvised him (promised civil suit dismissal), failed to seek competency or pursue an extreme emotional disturbance defense, and had a conflict from payment/brief civil-defendant status.
- Nunn learned the civil suit was not being dismissed by April 2012 (receipt of a motion for partial summary judgment and Scoville letters) and was pro se in the civil matter from May 2012.
- Nunn filed a state RCr 11.42 post-conviction motion on October 22, 2013; state courts denied relief, discretionary review ended Feb 9, 2017, and certiorari was denied June 26, 2017.
- Nunn filed his federal §2254 habeas petition (prison mailbox rule) on August 23, 2017. The district court found the petition untimely under AEDPA and addressed statutory and equitable tolling arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual date under §2244(d)(1)(A) | Nunn argued his claim’s factual predicate accrued with civil judgment (Aug 20, 2013) or later; thus AEDPA did not start earlier. | Warden: judgment was final July 28, 2011; Nunn knew the facts by April 2012, so statute ran earlier. | Court held accrual no later than April 30, 2012 (petitioner aware by April 2012); petition untimely. |
| State-created impediment tolling §2244(d)(1)(B) | Nunn claimed state actions (opposition to file turnover, lost pages at DPA, DOC confiscation) prevented timely filing. | Warden: alleged events did not constitute a state-created impediment preventing filing; many events post‑date filing or involved private actor (Scoville). | Court rejected §2244(d)(1)(B): Nunn filed despite missing materials; no federal due‑process violation shown; Scoville was private, and he could have obtained files earlier. |
| Factual-predicate delayed accrual §2244(d)(1)(D) | Nunn contended the claim wasn’t discoverable until final civil judgment made breach of promise justiciable. | Warden: vital facts (no deal, civil suit continued) were known by April 2012; later documents only strengthened an existing claim. | Court applied precedent that only “vital facts” matter; Nunn knew the predicates by April 2012—so (d)(1)(D) does not help. |
| Equitable tolling (Holland standard) | Nunn urged extraordinary circumstances: counsel dishonesty/abandonment, divided loyalties, and file-access impediments prevented timely filing. | Warden: Nunn was not prevented from filing, and he has not shown extraordinary circumstances or diligence sufficient for equitable tolling. | Court found no extraordinary circumstance preventing filing and insufficient showing of how alleged obstacles blocked timely federal filing; equitable tolling denied. |
Key Cases Cited
- Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745 (6th Cir. 2011) (access to transcripts or files not necessary to file habeas petition)
- Jefferson v. United States, 730 F.3d 537 (6th Cir. 2013) (explaining factual-predicate concept under §2244(d)(1)(D))
- Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012) (newly discovered supporting information does not create a new factual predicate)
- Holland v. Florida, 130 S. Ct. 2549 (2010) (equitable tolling requires diligence and extraordinary circumstances)
- Pace v. DiGuglielmo, 125 S. Ct. 1807 (2005) (statutory tolling under §2244(d)(2) applies only while state collateral review is properly pending)
- Wall v. Kholi, 131 S. Ct. 1278 (2011) (definition of collateral review for §2244(d)(2) purposes)