Evans v. State of Mississippi

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 , granting Motion to Dismiss 5 . Signed by Senior Judge Neal B. Biggers on 3/30/2017. (llw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
KEWON EVANS
V.

PETITIONER
CIVIL ACTION NO. 4:15CV117-NBB-JMV

STATE OF MISSISSIPPI

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause comes before the court on the June 9, 2016 Report and Recommendation of
the Magistrate Judge regarding a prior Report and Recommendation on Respondent’s Motion to
Dismiss. The Report and Recommendation was duly served on Petitioner, Kewon Evans, and
Petitioner timely filed objections to said Report and Recommendation. Upon due consideration
of the Motion to Dismiss, the Report and Recommendation, and Petitioner’s objections, the court
finds that Petitioner’s objections should be overruled, and the June 9, 2016 Report and
Recommendation should be approved and adopted as the opinion of the court.
Respondent, the State of Mississippi, was directed to answer Evans’ petition by order of
the court and did so on March 4, 2016, with its motion to dismiss. Petitioner filed no response to
the motion to dismiss, and the Magistrate Judge filed a Report and Recommendation on said
motion on April 19, 2016. Ten days later, Petitioner filed a Motion for Reconsideration of the
Report and Recommendation attaching thereto a response to the State’s motion to dismiss rather
than a memorandum brief in support of his motion. Finding Petitioner’s explanation for his
failure to respond in a timely manner persuasive, the Magistrate Judge reconsidered her Report
and Recommendation but reached the same conclusion set forth in her previous Report and
Recommendation that the instant federal habeas petition is untimely.

Petitioner also filed a Motion to Appeal Magistrate Judge Decision shortly after filing his
Motion for Reconsideration regarding the Magistrate Judge’s original Report and
Recommendation. Said appeal addresses the same issues set forth in Petitioner’s objections and
will therefore be rendered moot by this order.
A party who files timely objections to a magistrate judge’s report and recommendation is
entitled to a de novo determination of those findings to which the party specifically objects. 28
U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3). “Frivolous, conclusive, or general
objections need not be considered by the district court.” Nettles v. Wainwright, 677 F.2d 404,
410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
The court has reviewed the Report and Recommendation de novo and finds that
Petitioner’s objections are without merit. In fact, Petitioner’s objections are simply a rehash of
the arguments he made in response to the State’s motion to dismiss; to wit: (1) that the statute of
limitations for filing his federal habeas petition did not begin to run when his state court
conviction became final but instead when his second motion for post-conviction relief was
denied by the state court, and (2) that the statute did not begin to run as long as Petitioner
continued to discover or compile additional evidence to underpin the factual predicate offered in
support of his claim for habeas relief, even if the factual predicate and claim based thereon had
been well known to Petitioner previously.
The instant petition was filed pursuant to 28 U.S.C. § 2254. Title 28 U.S.C. § 2244(d)(1)
provides in pertinent part that the one-year statute of limitations for a claim under Section 2254
begins to run “from the latest of (A) the date on which the judgment became final by the

2

conclusion of direct review or the expiration of the time for seeking such 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 diligence.” The statute further provides that “[t]he 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)(2).
The court finds that the Magistrate Judge properly calculated the limitations period to
determine that the instant petition was untimely and hereby adopts the rationale set forth in the
Report and Recommendation. The court further finds that the Magistrate Judge properly rejected
Petitioner’s argument that, though the factual predicate of his claim (that a certain juror failed to
disclose her relationship to a witness in his case) was known to him on October 11, 2012, when
the juror’s recorded statement to Petitioner’s investigator was transcribed and signed by her, the
statute of limitations did not begin to run until he obtained an affidavit of the juror on November
6, 2014. As the Magistrate Judge noted, Evans, like the petitioner in Flanagan v. Johnson, 154
F.3d 196 (5th Cir. 1998), upon which Evans’ argument mistakenly relies, confuses the compiling
of additional evidence in support of a previously known (and indeed previously asserted in
Petitioner’s state court motions for post-conviction relief) factual predicate with knowledge of
the factual predicate. The court finds, as did the Magistrate Judge, that “[s]uch cumulative
evidence does not start a new one-year statute running, and no authority is cited by Petitioner to
suggest otherwise.” [Report and Recommendation, Doc. No. 10, p. 10].
The Magistrate Judge also recommends that a Certificate of Appealability be denied.
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, this court must issue or deny a

3

certificate of appealability (“COA”) upon entry of a final order adverse to the petitioner. 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.” 28 U.S.C. § 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 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 adopts the Magistrate Judge’s recommendation and finds that a COA
should be denied in this case.
Accordingly, it is ORDERED AND ADJUDGED:
1. That the Report and Recommendation of the United States Magistrate Judge dated
June 9, 2016, is hereby approved and adopted as the opinion of the court;
2. That the State of Mississippi’s Motion to Dismiss is hereby GRANTED;
3. That the instant petition is hereby dismissed with prejudice;
4. That Petitioner’s Motion to Appeal Magistrate Judge Decision is moot; and
5. That Petitioner is hereby denied a Certificate of Appealability.
This, the 30th day of March, 2017.

/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

4