STEPHEN ROBERTS NUNN v. AARON SMITH, Warden
No. 5:17-CV-356-WOB-REW
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON
January 17, 2018
Robert E. Wier, United States Magistrate Judge
RECOMMENDED DISPOSITION
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On August 23, 2017,1 Petitioner, Stephen Nunn, filed a Petition for a Writ of Habeas Corpus under
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 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.
(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.
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.
The Court found the petition facially untimely on initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. DE 8. Nunn‘s judgment became final on July 28, 2011. Consequently, under
Nunn‘s numerous avoidance arguments fall into four categories, three statutory and one equitable. Under
The Court has carefully reviewed the entire record, watched the filed videos, and assessed all tendered exhibits. Without question, Nunn‘s § 2254 is tardy and subject to dismissal. He clearly knew or had ready access to facts regarding each and every claim he tries now to pose well within the standard limitation period. No statutory or equitable theory preserves petition timeliness. Nunn murdered Ms. Ross. He admitted guilt and accepted punishment. The District Court should reject Nunn‘s untimely effort to displace the conviction imposed by the Commonwealth.
II. ANALYSIS
1. Delayed Accrual - § 2244(d)(1)
A. State-Created Filing Impediment - § 2244(d)(1)(B)
If an impediment to filing an application [is] created by State action in violation of . . . [federal] laws and the alleged state-created obstacle prevents filing, the AEDPA clock does not run until the state hindrance is removed.
The Court readily (and practically) dispenses with the latter two events as possible
The Court also perceives several fatal deficiencies in Nunn‘s claims regarding the case-file request. He does not persuasively argue any federal invalidity to the state file litigation. First, Nunn alleges violations of the Fifth and Sixth Amendments. These are inapplicable in the circumstances. The Fourteenth Amendment, not the Fifth, delineates states’ due process responsibilities. See
Second, Nunn offers no plausible nexus between the constitutional violations he alleges and the identified state proceedings. The Court perceives Nunn‘s statements regarding the work product doctrine as an attempt to craft the requisite connection. Yet, Nunn alleges no actual work product doctrine violation. The doctrine does not bar courts from conducting a hearing before turning over case files, nor does it forbid prosecutorial objection to file surrender. Kentucky validly sought to police the prior protective order and to assure Nunn received information properly subject to access. Petitioner cites no case to cast this as in violation of federal law. Even if the Court assumes Nunn had a Fourteenth Amendment-cognizable property right in his case file, he fails to explain how the process he received was insufficient, i.e., Nunn advances no procedural due process claim. Neither the state court, nor the state prosecutors violated the fundamental requirement of due process[, which mandates] an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 96 S. Ct. 893, 902 (1976). Nunn does not allege otherwise. Similarly, Nunn claims no substantive due process violation, i.e., he does not claim that unfettered case file access must remain inviolate from government actions regardless of the fairness of the procedures used to implement them. Daniels v. Williams, 106 S. Ct. 662, 665 (1986); see also Rudd v. Johnson, 256 F.3d 317, 319–20 (5th Cir. 2001) (rejecting claim of denial of due process based on lack of access to state‘s case file during state habeas proceeding).
Nunn, the Court must note, makes three basic claims: (1) that Scoville, relative to the guilty plea, failed him with respect to dismissal of the civil cases; (2) that Scoville failed him by not pursuing competency or pushing an EED defense; and (3) that Scoville had a conflict by virtue of the criminal fee payment and the brief inclusion of Scoville in the civil case, as to a possible fraudulent transfer. Nunn does not show how file access impeded his knowledge of or ability to express the claims. He was well aware that the civil case rolled on by April 2012, and that the Ross Estate would be seeking a judgment against him. DE 1-2, at 77 (Scoville letter to Nunn explaining they intend to proceed vigorously against you in the civil case.). Nunn had lived the litigation, had participated in competency proceedings, and had complete knowledge of the EED defense and its potential applicability at trial. Finally, Nunn was pro se in the civil cases after May of 2012 (although he had interactions with a guardian ad litem). As a pro se litigant, Nunn
Finally, the Court notes Nunn‘s allegation that Petitioner‘s counsel Warren Scoville created an impediment to filing by denying Petitioner access to his legal case filed for 14 months, which began March 26, 2012. DE 18, at 6. If true, Scoville‘s conduct, not Commonwealth action, was the relevant impediment to Nunn‘s document review. Scoville was a privately retained attorney, not a state actor. Thus, even if Nunn‘s separation from his case file prevented § 2254 filing—in some unexplained fashion—
The Court also finds that Scoville communicated multiple times that Nunn could pick up his file. Thus, in letters from April and May of 2012, Scoville stated that he had the file assembled, agreed that it belonged to Nunn, and offered to release it immediately to Nunn (via his daughter). DE 1-2 at 75–76, 85. Even at the time Nunn decided to approach the Fayette Circuit Court for relief, Scoville told him in a letter: Have Mary call and bring a copy of a Power of Attorney and we will be glad to release everything we have. Id. at 97. Scoville was no impediment, and Nunn could have retrieved his materials at any point from April to November of 2012.
In addition to stating no constitutional access claim, Nunn fails to establish any factual predicate for
Nunn also pursues an argument under
Nunn suggests he did not know enough to assert the claim until Judge Ishmael entered a final judgment in the civil case. He reaches this by phrasing the argument in language of contract (or perhaps, legal malpractice). However, Nunn‘s Strickland claim is that Scoville misled him into thinking the civil cases would end—the Estate would agree to dismissal—if he pleaded guilty to the LWOP murder. It was evident and known to
Congress did not provide a definition of the term factual predicate, as used in § 2244(d)(1)(D); . . . Those courts that have given meaning to the term agree that a factual predicate consists only of the vital facts underlying the claim. . . . We agree. The facts vital to a habeas claim are those without which the claim would necessarily be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (requiring a district judge to dismiss a petition [i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief) or Rule 12(b)(6) of the Federal Rules of Civil Procedure[.]
Rivas, 687 F.3d at 535 (internal citations omitted). Here, Nunn‘s knowledge of final civil judgment entry was not a prerequisite for his claim that Scoville misled him during plea negotiations by claiming his civil case would be dismissed as part of the plea deal he had struck with opposing counsel. DE 1, at 6 (emphasis added). Nunn alludes to this claim‘s latest undiscoverable potential factual predicate in the same paragraph, i.e., when he was made aware of the fact that no deal was struck. Id. It did not take a final judgment for Nunn to know there was no deal.
Notwithstanding Nunn‘s subsequent sworn claim that Scoville‘s alleged dissembling went undiscovered until judgment entry, DE 1, at 6, the record clearly establishes his factual-predicate awareness more than a year earlier. Nunn‘s own exhibits
The Court observes a few other important data points. In correspondence with his guardian ad litem, in July of 2012, Nunn described the civil status in the following way: Scoville either lied or mislead [sic] me as to the civil suit being dropped, as per my plea. Obviously that hasn‘t happened. This & other issues may lead me to a 11.42[.] DE 1-2, at 88. This starkly shows Nunn‘s cognizance of the claim predicate and the vehicle for possible relief. Also, Nunn testified to Judge Goodwine that he was pro se from Scoville‘s May 2012 withdrawal on. The final judgment shows that Judge Ishmael had actually entered a liability judgment on October 9, 2012. See DE 1-2, at 178. Thus, more than one year prior to the 11.42, Nunn knew a liability judgment existed. Nothing indicates that Nunn took any effort to litigate any possible agreement to dismiss. See also Goodwine Opinion, No. 09-CR-01678, at 8 ([T]he Court could not find any mention or reference in the civil action proceedings that it was Nunn‘s belief that the civil action was
Granting Nunn the maximum possible benefit of the doubt, the Court will assume that he could not have discovered the civil suit was not to be dismissed—and assume that fact was indeed a predicate for his claim—until sometime in April, [2012,] as Nunn previously testified. The Court will analyze Nunn‘s tolling arguments through the lens of an April 30, 2012,9 predicate-awareness date under
2. Tolling
As the Court noted previously, the period between Nunn‘s October 22, 2013, 11.42 filing and state discretionary review denial on February 9, 2017, meets the statutory requirements for
Given Nunn‘s reliance on efforts to obtain his case file to support tolling arguments, the Court provides a brief overview of those events, in advance of further analysis:
- August 10 & 12, 2012—Per Nunn (though not included in exhibits), he mailed requests to trial counsel Scoville requesting case file. DE 18, at 31.
- October 30, 2012—Nunn mailed notarized case file request to Scoville. DE 1-2, at 94–96.
- November 1, 2012—Scoville responds: I have had your entire file ready to be picked up by . . . whoever has your Power of Attorney. Id. at 97.
- November 9, 2012—Notarized case file request mailed to civil trial court judge, Hon. James D. Ishmael, and criminal trial court judge, Hon. Pamela Goodwine. Id. at 98.10
- February 1, 2013—Judge Goodwine conducted a hearing on the Commonwealth‘s motion to reinstate a protective order and remove from the
case file, before turnover, photographs (of any origin) of [the victim] or any other women and a letter from Defendant to Diana Ross. Id. at 121. - February 22, 2013—Supplemental hearing following DPA request to stay reinstitution of the protective order on Nunn‘s behalf. Id. at 121–22. DPA offered Nunn‘s objection regarding inclusion of victim‘s autopsy photographs in the protective order. Id. The parties acknowledged Nunn‘s ability to review protected items should any of the items become the subject of any post-conviction motions.11 Id.
- February 25, 2013—Judge Goodwine enters an order sustaining protective order reinstatement, on particular terms. Id.
- March 28, 2013—Nunn moves for case-file release. Id. at 154.
- April 23, 2013—Judge Goodwine orders case files released to Nunn upon his transportation to the Fayette County Courthouse on May 31, 2013. Id. at 155.
A. Additional Statutory Tolling - § 2244(d)(2)
Nunn relies on the pendency of the civil wrongful death action in his pursuit of additional statutory tolling under
A wrongful death action, brought by the personal representative of the deceased, does not involve reexamination of a judgment resulting from state criminal charges. Compare KRS 411.130 (Action for wrongful death[.]), with KRS 507.020 (Murder.); see also Woodward v. Cline, 693 F.3d 1289, 1293 (10th Cir. 2012) (Post-conviction motion for DNA testing did not call for a judicial reexamination of the judgment imposing Applicant‘s sentence.). The civil case in no way assessed or affected the criminal judgment, quite the opposite. In any event, the processes were independent. See, e.g., Starns v. Andrews, 524 F.3d 612, 620 (5th Cir. 2008) (in AEDPA context, calling a wrongful death case and a criminal proceeding completely separate cases); Rufo v. Simpson, 86 Cal. App. 4th 573, 626, 103 Cal. Rptr. 2d 492, 529 (2001) (affirming civil wrongful death judgment notwithstanding defendant‘s acquittal on homicide charges). Overlap between underlying facts does not remove the judgment or claim reexamination requirement under
Nunn is entitled to an accrual date no later than April 30, 2012. Nunn is ineligible for statutory tolling before October 22, 2013. Accordingly, Nunn must establish his entitlement to equitable tolling for, at minimum, 177 of the 541 days between April 30, 2012, and October 22, 2013, to avoid expiration of the AEDPA clock before the 11.42 filing. Further, to ultimately survive a time bar, Nunn‘s equitable tolling arguments must also account for the 195 additional non-statutorily tolled days between February 9, 2017,
B. Equitable Tolling
The AEDPA statute of limitations is not jurisdictional; therefore, equitable tolling may be permissible in some circumstances. See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (citing Day v. McDonough, 126 S. Ct. 1675, 1681 (2006)); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Sixth Circuit has succinctly stated the contours of the doctrine of equitable tolling:
[E]quitable tolling relief should only be granted sparingly. Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005) (quoting Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002)). The party seeking equitable tolling bears the burden of proving he is entitled to it. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). Ordinarily, a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 418 U.S. 408, 125 S. Ct. 1807, 1814 (2005)); see also Hall v. Warden, 662 F.3d 745, 749–50 (6th Cir. 2011) (same).
Freeman v. Trombley, 483 F. App‘x 51, 55 (6th Cir. 2012). The doctrine allows courts to toll a statute of limitations when a litigant‘s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant‘s control. Plummer v. Warren, 463 F. App‘x 501, 504 (6th Cir. 2012) (citation and internal quotation marks omitted).
On this record and under the prevailing standards, the doctrine of equitable tolling does not apply to save Nunn‘s untimely petition. Nunn exhaustively argues his diligence. The Warden responds that Nunn showed diligence to his state, rather than federal rights, as would be required to equitably toll the AEDPA clock. DE 25, at 15. Nunn‘s latest
Nunn claims that he repeatedly faced extraordinary circumstances throughout his case. DE 28, at 3–4. He contends he endured bad faith opposition and dishonesty from Scoville, the state prosecution, and the state courts. DE 18, at 13–18. Nunn also alleges Scoville had divided loyalties, was mentally impaired, and abandoned his client. Id. at 19–21. Yet, the Court sees no evidence that any circumstances—whether exceptional or banal—actually blocked Nunn‘s filing. Nunn, notwithstanding sparse conclusory and often fanciful allegations,12 develops no cogent argument to the contrary.
Several of the impediments Nunn claims (divided loyalty, abandonment, counsel‘s alleged mental impairment) ended as factors when Scoville left the scene in April and May of 2012, some seventeen months before the 11.42 filing. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010) (holding alleged negligence of petitioner‘s trial counsel had little to no bearing on his ability to file timely federal habeas petition). Others (e.g., BOP case file seizure) arose after Nunn had already filed an analogous state post-conviction motion, belying any impediment assertion. On April 26, 2012, Scoville unequivocally informed Nunn that his representation was at an end. Even
Moreover, none of the alleged obstacles truly barred Nunn‘s § 2254 filing. For instance, Nunn relies heavily on impediments to case file access. Yet, he never identifies any particular inaccessible case file documentation relevant to his ineffective assistance claims, nor how access delay prevented his filing. The Court finds no case file relevance for (1) the alleged civil dismissal deal and its failure; (2) Scoville‘s alleged failure to demand a competency hearing or press EED (and the facts that he alleges necessitated such hearing); or (3) Scoville‘s acceptance of proceeds from Nunn‘s home‘s sale and the alleged pertinent conflict. Nunn obviously was—or could, through reasonable diligence, have been—aware of each of these events, regardless of case file access. In short, Nunn never explains how any of the alleged obstacles prevented timely filing his § 2254 exactly as it was eventually filed. See Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) ([Defendant] was quite aware of the limitations period and could have filed a pro se skeletal petition[.]); Stonebarger v. Williams, 458 F. App‘x 627 (9th Cir. 2011) (denying equitable tolling where prisoner could have filed timely federal habeas petition and requested stay), cert. denied, 132 S. Ct. 1870 (2012).
The Court finds no circumstance, and certainly nothing extraordinary, to keep Nunn from timely filing. He knew the bases for (or had access to the bases for) all claims by May of 2012. At that point, Scoville had told him the civil cases would not be dismissed. He knew the full strategic result of the guilty plea, and he was pro se and in charge of his own defense on the civil side. By July of 2012, Nunn told the state guardian ad litem that Scoville either lied or mislead [sic] me as to the civil suit being dropped, as
III. Conclusion
Nunn presents no valid basis for an accrual date after April 30, 2012. Nunn also wholly failed to carry his tolling burden—whether equitable or statutory. Accordingly, the AEDPA 1-year statute of limitations expired no later than April 30, 2013, and Nunn‘s August 23, 2017, untimely petition is time-barred under
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The Court directs the parties to
This the 17th day of January, 2018.
Signed By:
Robert E. Wier
United States Magistrate Judge