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Ford v. Jenkins

United States District Court, N.D. Mississippi, Greenville Division

September 30, 2019

STEVENSON FORD PETITIONER
v.
LEPHER JENKINS, et al. RESPONDENTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         Following the dismissal of his petition for a writ of habeas corpus, Stevenson Ford’s post-judgment filings are now before the Court.

         I

         Procedural History

         On 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, [1] amended his petition to assert additional grounds for relief. Doc. #8.

         On June 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.

         On 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.

         On or 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.[2] The respondents responded to the objection and the motion to amend on January 31, 2019. Doc. #22.

         On or 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.

         II

         Timeliness of Filings

         Ford 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, [3] 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 ….”).

         III

         Motion ...


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