United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
Vodie Bishop filed his initial petition for a writ of habeas
corpus (Doc. No. 1) in this matter, the court directed Bishop
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.
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).
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.
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
• 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 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
• 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 ...