Conwill v. Benjamin et al

Filing 19

ORDER GRANTING 10 Motion to Dismiss; ADOPTING 15 Report and Recommendations; and GRANTING 18 Motion to Amend/Correct. Signed by District Judge Carlton W. Reeves on 09/23/2015.(an)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

ANDREW D. CONWILL

PETITIONER

V.

CAUSE NO. 3:14-cv-498-CWR-LRA

IRB BENJAMIN and MCM, Inc.

RESPONDENTS
ORDER

Before the Court is the petitioner’s objection, Docket No. 17, to the Magistrate Judge’s
Report and Recommendation, Docket No. 15. 1
Having considered the objections, the Court finds that Conwill’s Petition for Writ of
Habeas Corpus should be dismissed. Pursuant to 28 U.S.C. § 2244(d)(1)(D), a state prisoner has
one-year to file a federal habeas petition from “the date on which the factual predicate of the
claim or claims presented could have been discovered through the exercise of due diligence.”
Conwill’s conviction became final no later than July 25, 2008. Docket No. 15. Conwill
acknowledges that his petition is untimely, but asserts that he is entitled to statutory tolling
because he did not discover the factual predicate of his ineffective assistance of counsel claim
until the trial court denied his motion for out-of-court time appeal on May 25, 2012. Docket No.
17. A close reading of § 2244(d)(1)(D), however, reveals that the date of Conwill’s discovery is
not the relevant issue, but rather the date which due diligence would have led to the discovery.
Manning v. Epps, 688 F3d. 177, 189 (5th Cir. 2012). As noted in the Report and
Recommendation, the fact that an appeal had not been filed on Conwill’s behalf was a matter of

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Also before the Court is petitioner’s Motion for Submission of Codicil Affidavit. Among the various documents
Conwill filed to support his objection was the affidavit of John Hannon. In this particular motion he contends that
the affidavit contains two scrivener errors and he seeks to file the “codicil affidavit” in “order to correct 2
scrivener’s errors.” Docket No. 18. The respondents have not responded so the Court grants the motion as
unopposed. L.U.Civ. R. 7(b)(3)(E).

public record. Further, Conwill’s new counsel submitted an affidavit in May 2010, indicating
that Conwill’s former counsel had only filed a JNOV motion and had taken no further actions to
appeal his burglary conviction. While Conwill argues that there should be concerns with the
effectiveness of his counsel during the May 12, 2008 sentencing proceedings, Conwill has not
demonstrated that he acted diligently either after his conviction became final in July 2008 or
after he allegedly discovered the factual predicate of his claim in May 2012.
Conwill also asserts that he is entitled to statutory tolling because he is “actually
innocent.” Docket No. 17. The Court is unpersuaded by this argument. To prove actual
innocence, the petitioner must “establish through new and reliable evidence that it was more
likely than not that no reasonable juror would have convicted him in the light of the new
evidence.” Woodfox v. Cain, 609 F.3d 774, 794 (5th Cir. 2010) (internal quotation marks and
citation omitted). To support his claim, Conwill does not offer new evidence, but “evidence not
presented at trial.” Docket No. 17.
Accordingly, this Court adopts the Report and Recommendation as it own findings and
conclusions, and this case is dismissed with prejudice and a Final Judgment will be entered on
this day in accordance with this Order. Pursuant to Slack v. McDaniel, 529 U.S. 473, 484, 120
S.Ct. 1595, 146 L.Ed.2d 542 (2000), no certificate of appealability shall issue. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
SO ORDERED, this the 23rd day of September, 2015.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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