Bishop v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Vodie Bishop
v. Civil No. 16-cv-263-PB
Michelle Goings, Warden,
Northern New Hampshire Correctional Facility
REPORT AND RECOMMENDATION
After Vodie Bishop filed his initial petition for a writ of
habeas corpus (Doc. No. 1) in this matter, the court directed
Bishop to:
1. file a notice concerning whether Bishop intended
to pursue this habeas action as a petition under 28 U.S.C.
§ 2254 or 28 U.S.C. § 2241; and
2. demonstrate either that a) his petition was
timely filed; b) the statute of limitations should be
tolled in this matter; or c) he is actually innocent of
each of the offenses of which he was convicted.
Bishop has filed a response (Doc. No. 5) to the court’s
Order and an addendum (Doc. No. 6) to that response. Bishop
indicates in his response that he wishes to proceed in this
matter under § 2254. Bishop also concedes that he did not begin
state court post-conviction litigation in this matter until
after the expiration of the statute of limitations set forth in
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28 U.S.C. § 2244(d). Bishop attempts, instead, to establish
that he is actually innocent of the criminal offenses of which
he was convicted, and that his petition should thus be excepted
from the requirement of timely filing under § 2244(d).
Background
Bishop pled guilty on September 16, 2013 to three counts of
felony sexual assault and was sentenced to three 2-5 year prison
terms, to be served concurrently. Bishop is currently
incarcerated pursuant to that sentence.
Bishop has now submitted information to the court
indicating that he was charged with sexually assaulting a
thirteen-year-old girl, M.P., on several occasions in 2011 when
Bishop was twenty. Bishop has filed documents here which reveal
the following facts:
 In early December 2011, M.P. reported to her mother, A.P.,
that M.P. was having unusual vaginal bleeding. On December
5, 2011, A.P. took M.P. to the doctor, who determined that
the likely cause of the bleeding and pain was a tear in
M.P.’s vaginal wall. M.P. told her mother that she had had
consensual sex with an individual named “Vodie” who “tore
her.”
 A.P. subsequently spoke with “Vodie,” who denied having sex
with M.P. When a Nashua Police detective showed A.P. a
photo array which contained pictures of Bishop and seven
other individuals, A.P. identified another individual as
“Vodie.”
 On December 9, 2011, M.P. was at the gynecologist to have a
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Depo-Provera1 shot, but fainted after the doctor told M.P.
that she wanted to do a pelvic examination to check on
M.P.’s vaginal tear. M.P. was transported to the Southern
New Hampshire Medical Center Emergency Room (“ER”). M.P.
was accompanied to the gynecologist and the ER by A.P. and
by M.P.’s boyfriend Robert Sperow.
 M.P. told ER personnel that she had received a vaginal tear
from having sex with “my boyfriend.” Later that day, in an
interview with the Nashua Police Department, M.P. stated
that her vaginal tear was several weeks old, and “was most
likely caused” when she had sex with Bishop, with whom she
reported having sex nine or ten times between September
2011 and November 2011. M.P. identified Bishop in a photo
lineup.
 M.P. also told the police that she had been dating Sperow
for only a short time and was not having sex with Sperow.
 M.P. told the police that on several of the occasions on
which she had sex with Bishop, she bled from her vagina due
to her vaginal tear, including one occasion on which M.P.
saw blood on Vodie’s mattress she believed to have been
from her vagina.
 The state laboratory’s report of DNA test results conducted
in Bishop’s criminal case indicated: one sample cutting
from the mattress showed the presence of DNA on Bishop’s
mattress that could not have come from Bishop or M.P.; a
second mattress sample indicated the presence of DNA
material on Bishop’s mattress came from a male that could
have been Bishop; and a third mattress sample indicated
that there was DNA material on the mattress that belonged
to M.P. “[t]o a reasonable degree of scientific certainty.”
Doc. No. 6-13.
 M.P. told the police that Sperow was unaware that M.P. had
had sex with Bishop, or that Bishop had caused her vaginal
tear. M.P. told the police that Sperow believed that the
tear had been caused by another individual, Johnny Michaud,
1Depo-Provera is an injectable contraceptive. See U.S.
Nat’l Libr. of Med., MedlinePlus, Medroxyprogesterone Injection,
https://medlineplus.gov/druginfo/meds/a604039.html (last viewed
Aug. 15, 2017).
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with whom M.P. had had sex “around Halloween” 2011. Doc.
No. 6-7, at 1.
 In the state court, Bishop filed a post-conviction
challenge to his conviction. The State’s objection to that
conviction states that Bishop “made admissions to these
crimes” when providing a statement to the Nashua Police.
Doc. No. 6-12.
 M.P. “did not wish to participate in the prosecution” of
the state criminal case against Bishop, which resulted in a
negotiated plea arrangement in Bishop’s criminal case. Id.
Discussion
Where, as here, a § 2254 petition is filed after the
statute of limitations has expired, the court may allow the
petition to proceed if the petitioner can make a credible claim
of actual innocence. See generally McQuiggin v. Perkins, 133 S.
Ct. 1924, 1933-36 (2013).
For a petitioner to pass through the actual innocence
gateway, such that his claims, though procedurally barred,
may nevertheless be heard by a federal court, he must
present a claim of actual innocence [that is] both credible
and compelling. For the claim to be credible, it must be
supported by new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not
presented at trial. For the claim to be compelling, the
petitioner must demonstrate that more likely than not, in
light of the new evidence, no reasonable juror would find
him guilty beyond a reasonable doubt-or to remove the
double negative, that more likely than not any reasonable
juror would have reasonable doubt.
Stephenson v. Connecticut, 639 F. App’x 742, 744 (2d Cir. 2016)
(internal quotation marks and citations omitted).
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Bishop asserts that the following facts in particular,
which were not presented to the trial court, provide compelling
evidence of his actual innocence of sexual assault: 1) M.P.’s
mother did not identify Bishop in a photo lineup after stating
she had spoken with Bishop; 2) while M.P. was dating Sperow,
M.P. told a nurse that her tear was caused by “having sex with
[my] boyfriend”; and 3) M.P. appears to have told Sperow that
her vaginal tear had been caused by having sex with Michaud.
While these facts may have been fodder for challenging the
credibility of one or more witnesses at trial, or may have been
the basis of a defense theory at trail (had Bishop gone to trial
instead of pleading guilty), they do not demonstrate that Bishop
did not commit the sexual assaults of which he was convicted.
Put another way, the facts to which Bishop points, as evidence
of his innocence, do not demonstrate “that more likely than not,
in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt.” Id.
Accordingly, Bishop has failed to meet his burden to
demonstrate a credible and compelling claim of actual innocence.
For that reason, the district judge should not except the
pending petition from the applicable statute of limitations, and
should dismiss the petition as untimely.
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Conclusion
For the foregoing reasons, the habeas petition (Doc. No. 1)
should be dismissed as untimely filed. Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The
fourteen-day period may be extended upon motion. Failure to
file specific written objections to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ. P.
72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 17, 2017
cc: Vodie Bishop, pro se
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