Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 1 of 7 PageID #: 86
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 4:13CV27-SA-DAS
WARDEN DAVENPORT, et al.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Joseph Stevenson,
Mississippi prisoner no. 129908, for a writ of habeas corpus under 28 U.S.C. § 2254.
Respondents have moved to dismiss the petition, Petitioner has responded, and the Court has
sought and received a reply by Respondents. The time has passed for Petitioner to respond to
Respondents’ reply, and the matter is now ripe for resolution. For the reasons set forth below,
Respondents’ motion will be granted, and the instant petition will be dismissed as untimely filed
under 28 U.S.C. § 2244(d).
Facts and Procedural Background
Petitioner was convicted of statutory rape in the Circuit Court of Washington County,
Mississippi, and was sentenced on June 13, 2007, to serve a life sentence in the custody of the
Mississippi Department of Corrections. (See Respt’s Mot. to Dismiss, Ex. A). On December 16,
2008, the Mississippi Court of Appeals affirmed his judgment of conviction and sentence. (See
id., Ex. B; see also Stevenson v. State, 13 So. 3d 314 (Miss. Ct. App. 2008), reh’g denied, April
21, 2009, cert. denied. July 30, 2009 (Cause No. 2007-KA-01229)). Petitioner filed his federal
petition on or about February 15, 2013.
Law and Analysis
The issue of whether Respondents’ motion should be granted turns on 28 U.S.C. §
Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 2 of 7 PageID #: 87
2244(d), 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
(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 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
(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.
28 U.S.C. § 2244(d)(1) and (2).
Therefore, unless the limitations period is tolled, Petitioner must have filed his federal
habeas petition within one year of the date his conviction became final. It does not appear that
Petitioner sought a writ of certiorari with the United States Supreme Court following the
decision affirming his direct appeal, thus Petitioner’s conviction and sentence became final on
October 28, 2009, which was ninety (90) days after the Mississippi Supreme Court denied
certiorari review of his case (July 30, 2009 plus 90 days). See, e.g., Roberts v. Cockrell, 319 F.
3d 690 (5th Cir. 2003); Bell v. Maryland, 378 U.S. 226, 232 (1964) (time period in which petition
could file for certiorari to the Supreme Court must be considered in calculating date on which
Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 3 of 7 PageID #: 88
judgment becomes final). Absent any applicable tolling, Petitioner’s federal habeas petition was
due on or before October 28, 2010.
Petitioner signed the attachment to his petition on February 5, 2013, and the envelope
filed with his petition is postmarked February 19, 2013. Under the “mailbox rule,” a
petitioner’s pro se petition for a writ of habeas corpus is deemed filed on the date it is delivered
to prison officials for mailing. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999).
Giving Petitioner the benefit of the earlier date, the Court finds that the instant petition was still
filed well beyond the October 28, 2010, deadline.
Petitioner does not allege, and the Court does not find, that Petitioner has sought post-
conviction relief with the Mississippi Supreme Court. Therefore, the limitation period for
federal habeas purposes has not been tolled during the pendency of any State post-conviction
procedures brought by Petitioner or on his behalf, and Petitioner cannot avail himself of the
tolling provision in § 2244(d)(2).
However, Petitioner argues that the “intervening decision” exception of § 2244(d)(1)(C)
is applicable in this case. Petitioner maintains that the statute of limitations does not bar this
action because of the “intervening” decision of the Mississippi Supreme Court in Rowland v.
State, 42 So. 3d 503 (Miss. 2010) (holding that “[e]rrors affecting fundamental constitutional
rights are excepted from the procedural bars of the [State post-conviction statute]”).
Respondents argue, and the Court agrees, that the tolling provision in § 2244(d)(1)(C) allows the
federal limitations period to begin running on the date “a 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.” Inasmuch as a
State court decision cannot fall under the “intervening decision” exception of the statute,
Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 4 of 7 PageID #: 89
Petitioner cannot avail himself to the later start date of § 2244(d)(1)(C).
Petitioner also argues that the “factual predicate” exception of § 2244(d)(1)(D) applies to
his case. He maintains that he has DNA evidence and an “imperative and substantial new
witness who will testify to the Mother’s corruption and premeditated plot to entrap him.” (See
ECF no. 1, p. 13). As the Court understands it, Petitioner’s argument is that he and the victim’s
mother were engaged in some sort of affair, and that when he refused to leave his wife for her,
the victim’s mother concocted these false allegations of statutory rape against Petitioner. In
support of his argument, Petitioner submits the April 1, 2012, sworn statement of Dave
McCullar, who states that the victim’s mother told him that she was going to “set Joe Stevenson
up for raping her daughter[.]” (See doc. entry no. 10, p. 4). Petitioner maintains that the witness,
who also dated the victim’s mother, is the brother-in-law of Petitioner’s uncle. Presumably, the
witness and Petitioner’s uncle had a conversation about Petitioner, and this information was
disclosed to Petitioner.
Petitioner does not state when he learned of the information underlying the facts in Mr.
McCullar’s sworn statement, nor does he explain how he exercised due diligence in discovering
the factual predicate to his claim. The statement by Mr. McCullar was signed on April 1, 2012,
and § 2244(d)(1)(D) tolls the limitations period until the discovery of the factual predicate, not
until the petitioner gathers evidence to support his claim. See Flanagan v. Johnson, 154 F.3d
196, 198-99 (5th Cir. 1998). The Court also notes that even though the statement was signed on
April 1, 2012, Petitioner waited over a year to produce the document. He submitted it
approximately May 14, 2013, in response to the State’s motion to dismiss his petition.
Additionally, the statement by McCullar, while it might have provided support at trial for
Petitioner’s claim that the victim’s mother fabricated the charges, does not refute the evidence of
Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 5 of 7 PageID #: 90
guilt offered by the State. Therefore, Petitioner cannot rely upon § 2244(d)(1)(D) to toll the
limitations period under these circumstances.
Petitioner also alleges that DNA testing would exonerate him. To the extent that
Petitioner argues that his claim regarding DNA evidence constitutes a previously undiscoverable
factual predicate, the Court notes that DNA tests were performed and the evidence was
mentioned at trial. See, e.g, Stevenson, 13 So.3d at 316 (referencing testimony from forensic
scientist stating that there was no viable DNA sample to test because of the small number of
sperm cells found from the swab of the victim). There is nothing in the record to contradict the
finding by the State court that there is no viable DNA to test, and the limitations period will not
be tolled based on his assertion that DNA testing should be conducted.
Even though Petitioner has failed to meet any of the § 2244(d) exceptions to the one year
limitations period, the Court notes that the limitations period of the AEDPA may be equitably
tolled if Petitioner can demonstrate “(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way” to prevent timely filing. Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010) (citations omitted). It is relief that is available only in
“rare and exceptional circumstances,” such as where a petitioner “is actively misled . . . about the
cause of action or is prevented in some extraordinary way from asserting his rights.” Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999). Petitioner argues that his attorney died “untimely”
and failed to file a petition for writ of certiorari to the United States Supreme Court. However,
counsel’s death did not impact the limitations period, which did not begin to run until
Petitioner’s direct appeal was final. Although Petitioner does not identify the date counsel died,
the Court notes that Petitioner was afforded an additional ninety (90) days to account for the time
period to seek certiorari review. Therefore, no additional tolling is warranted based on counsel’s
Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 6 of 7 PageID #: 91
To the extent that Petitioner maintains that he is innocent, the Court notes that the United
States Supreme Court recently held that actual innocence, “if proved, serves a gateway through
which a prisoner may pass whether the impediment is a procedural bar . . . or expiration of the
AEDPA statute of limitations[.]” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). This
requirement of “proof” is not met, however, unless the petition “persuades the district court that,
in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Id. In this case, Petitioner only makes a claim - not a showing - of
actual innocence. Moreover, the Court notes that the state court found the evidence at trial
supported the verdict. The evidence against Petitioner included testimony from the eleven year
old victim, her mother, a social worker, and emergency room personnel who examined the
victim and completed a rape kit. See Stevenson, 13 So.3d at 315-17, 319-20. The Court finds
Petitioner does not otherwise show “rare and exceptional circumstances” that would warrant
equitable tolling in this case, and it determines that the instant petition is untimely.
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, this Court must issue or
deny a certificate of appealability (“COA”) upon entry of a final order adverse to the petitioner.
Petitioner must obtain a COA before appealing this Court’s decision denying federal habeas
relief. 28 U.S.C. § 2253(c)(1). A COA will not issue unless Petitioner makes “a substantial
showing of the denial of a constitutional right” of any claim rejected on its merits, which
Petitioner may do by demonstrating that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 484 (2000). To obtain a COA on a claim that has been rejected on procedural
Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 7 of 7 PageID #: 92
grounds, Petitioner must demonstrate “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S.
at 484. Applying this standard, the Court finds that a COA should be denied in this case.
The Court finds that the instant petition is barred by the AEDPA’s 1-year statute of
limitations period. Therefore, the Court GRANTS Respondents’ “Motion to Dismiss Pursuant
to 28 U.S.C. § 2244(d)” (doc. entry no. 9) and DISMISSES Petitioner’s petition with prejudice.
A certificate of appealability is DENIED. A final judgment in accordance with this
memorandum opinion and order will issue today.
SO ORDERED this the 30th day of July, 2013.
/s/ Sharion Aycock________
U.S. DISTRICT JUDGE