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Case: 4:13-cv-00027-SA-DAS Doc #: 14 Filed: 07/30/13 1 of 7 PageID #: 86











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. §


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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


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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,


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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


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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


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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


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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________