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Bishop v. Goings

United States District Court, D. New Hampshire

August 17, 2017

Vodie Bishop
v.
Michelle Goings, Warden, Northern New Hampshire Correctional Facility

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone, United States Magistrate Judge.

         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 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 Depo-Provera[1] 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 ...

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