United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE.
the dismissal of his petition for a writ of habeas corpus,
Stevenson Fordâs post-judgment filings are now before the
March 13, 2018, the Court received Stevenson Ford’s pro
se petition for a writ of habeas corpus. Doc. #1. In the
petition, which was stamped for mailing on March 7, 2018,
Ford challenged his 2009 conviction and sentence for murder.
Id. at 1. In the memorandum accompanying his
petition, Ford asserted five grounds for relief: (1) he
received ineffective assistance of counsel; (2) the
underlying indictment was insufficient; (3) the evidence
presented at trial was insufficient to support a verdict for
murder; (4) he was entitled to a mistrial based on the
testimony of his co-defendant; and (5) the prosecutor’s
conduct violated his right to due process. See Doc.
#2 at 5. On June 4, 2018, Ford, with leave of the Court,
amended his petition to assert additional grounds for relief.
21, 2018, the respondents filed a motion to dismiss
Ford’s petition as time barred. Doc. #10 at 1–2.
Ford responded to the motion on or about July 2, 2018,
arguing, among other things, that the statute of limitations
for habeas actions should not apply because he was asserting
a claim of actual innocence. Doc. #11.
August 14, 2018, United States Magistrate David A. Sanders
issued a Report and Recommendation (“R&R”)
recommending that Ford’s petition be dismissed with
prejudice because Ford’s claims were time barred and
because Ford failed to present sufficient evidence of actual
innocence. Doc. #13. On or about September 4, 2018, Ford
filed a motion for an extension of time to file objections to
the R&R. Doc. #16. On November 7, 2018, Judge Sanders
granted the motion and extended the deadline to object until
November 28, 2018. Doc. #17. This Court did not receive
objections from Ford. In the absence of objections, the
Court, on January 3, 2019, reviewed the R&R for clear
error and, finding none, adopted the R&R and dismissed
Ford’s petition. Doc. #19.
about January 11, 2019, Ford filed an affidavit stating:
A motion to object to Report and Recommendation was mailed to
your office on October 2, 2018 along with my motion to amend
to [sic] my writ of habeas corpus. I have enclosed a copy of
(Exhibit A) of the outgoing mail log for the date of October
2, 2018 from Marshall County Correctional Facility.
Doc. #21. In addition to the mail log, which shows Ford
mailed a document to this Court on October 2, 2018, Ford also
attached to his affidavit two documents dated October 2,
2018-one titled “Objection to Report and
Recommendation, ” and the other titled “Motion to
Amend to 2254 Writ of Habeas Corpus.” See Doc.
#21 at PageID #222, #229. The respondents responded to the
objection and the motion to amend on January 31, 2019. Doc.
about January 15, 2019, Ford, citing his allegedly timely
objections, filed a motion to set aside this Court’s
January 3, 2019, judgment. Doc. #24. The respondents filed a
response to this motion on February 21, 2019.
has submitted an affidavit stating that he mailed both his
objections and his motion to amend on October 2, 2018, and a
Mississippi Department of Corrections mail log showing that
he mailed two documents to this Court on the date he claims.
Doc. #21 at PageID #219–20. Ford’s claim of
mailing is further corroborated by the affidavit of Winnifred
P. Anderson, an Inmate Legal Assistance Program employee,
which states that Ford mailed a package to this Court on
October 2, 2018, and that the package contained a
“motion to object to report and recommendation.”
Doc. #22-1. Based on this evidence, the Court concludes that
Ford filed his objections and his motion to amend on or about
October 2, 2018,  but that the documents were either lost by
the prison or lost in the mail. Under these circumstances,
the documents will be deemed filed as of this date. See
Long v. Atlantic City Police Dep’t, 670 F.3d 436,
446 (3d Cir. 2012) (“When facts are found that
demonstrate prison delay, [a court may] exclude[e] the time
lost due to [the] delay, [and] deem as timely what would
otherwise be an untimely motion ….”).