Bevalaque v. McClure

CourtDistrict Court, S.D. Mississippi
DecidedMarch 3, 2025
Docket3:23-cv-00273
StatusUnknown

This text of Bevalaque v. McClure (Bevalaque v. McClure) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bevalaque v. McClure, (S.D. Miss. 2025).

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

JOHN M. BEVALAQUE PETITIONER

V. CIVIL ACTION NO. 3:23-CV-273-KHJ-RPM

SUPERINTENDENT MARC MCCLURE, et al. RESPONDENTS

ORDER Before the Court is Magistrate Judge Robert P. Myers, Jr.’s [12] Report and Recommendation. The Court adopts it, grants Respondents’ [6] Motion to Dismiss, and dismisses with prejudice Petitioner’s [1] Petition for Writ of Habeas Corpus. I. Background Petitioner John M. Bevalaque’s conviction became final in 2012. [12] at 3. But he waited until 2023 to file this counseled federal habeas action. [1]. So the question is whether he is entitled to equitably toll the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year statute of limitations by over a decade. 28 U.S.C. § 2244(d). To answer that question, the Court first outlines the proceedings before it. It then sums up the parts of the record most relevant to equitable tolling. A. These Proceedings The proceedings before this Court frame Bevalaque’s evolving request for equitable tolling. So the Court starts there. At first, Bevalaque thought his [1] Petition was timely. That was so, he said, because he filed “within one year of April 26, 2022.” Mem. Supp. Pet. [2] at 6. Bevalaque apparently believed that April 26, 2022, was the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking [such] review.” (quoting 28 U.S.C. § 2244(d)(1)(A)).

That was wrong. In fact, Respondents’ [6] Motion to Dismiss explained, Bevalaque’s time for seeking review expired in March 2012. [6] at 16. It was his third round of review that ended on April 26, 2022. at 6, 16. So the [1] Petition was over a decade late—“absent statutory or equitable tolling,” Respondents noted. [6] at 14. “[T]olling,” Bevalaque responded. Resp. [9] at 1. His tolling argument proceeded in two steps. First, he requested equitable tolling up until November

2020. Mem. Supp. Resp. [10] at 2, 4–5. That was warranted, he said, because his trial counsel ignored his “repeated requests” for his discovery. at 4–5.1 Bevalaque finally received it in April 2020 and then filed a third post-conviction relief (PCR) motion that November. Second, he asserted (without citation) that his third PCR motion “undeniably” tolled the limitations period. at 5. Presumably, he thought that statutory tolling kicked in.

That was wrong. In fact, the [12] Report explained, statutory tolling was inapplicable: He filed each PCR motion after AEDPA’s limitations period expired. [12] at 3. So timeliness hinged on equitable tolling. The Report concluded that equitable tolling was inapplicable, too: Bevalaque failed to show (1) diligence or (2)

1 Bevalaque also made “repeated requests” to the “Circuit Clerk of Rankin County.” [10] at 3–4. The clerk did not have the discovery. , [7-4] at 249 (explaining as much). an extraordinary circumstance that prevented timely filing. at 3–7. So the Report recommended dismissing the [1] Petition as time-barred. [12] at 7. Bevalaque objected. Obj. [14]. Changing tack, he abandoned any statutory-

tolling argument. at 1–10. Instead, he requested equitable tolling given his “inability to obtain the necessary discovery.” at 6; at 2–10.2 B. Equitable Tolling The Court now rewinds, outlining the facts relevant to Bevalaque’s request. In 2011, Bevalaque was charged with seven counts of child exploitation. [7-1] at 47–49.3 While detained, he was “able to review the discovery . . . while visiting with trial counsel . . . .” [14] at 3.4 He then pleaded guilty to six counts,5 admitting

that he possessed child pornography on five DVDs and a laptop. [7-1] at 37–43. The trial court accepted the plea. at 43. And it sentenced him to 35 years, with ten suspended. at 43–44. It entered its judgment in December 2011. at 66–71. Bevalaque’s family waited nearly “two and ½ years” before hiring a lawyer. [7-4] at 61. By the time Bevalaque filed his first PCR motion in April 2013,

2 The [14] Objection also requested the “opportunity to amend and/or supplement these Objections.” [14] at 2; at 9. The Court denies that request. The Court had extended the deadline based on counsel’s representation that he would “travel to Parchman to meet with [Bevalaque] and deliver a copy of the [12] Report . . . .” Mot. [13] at 2; 1/22/2025 Text Only Order. Counsel failed to do so. And counsel failed to show good cause for a second (and indefinite) extension of Rule 72’s deadline. [14] at 2. Although the Court thus denies the request for a second extension, it assures Bevalaque that it has exhaustively reviewed the record before it. 3 The Court’s references to docket entries [6-1] through [6-8], as well as entries [7-1] through [7-6], are citations to the state-court record. 4 Investigators maintained the “physical evidence described in the reports.” [7-1] at 55; Miss. Code Ann. § 99-1-29. 5 The seventh count was in exchange for the plea. [7-1] at 63–64. then, AEDPA’s limitations period had expired. [12] at 1, 3. The trial court dismissed that motion for want of prosecution. [6-4].6 Through the same lawyer, Bevalaque filed a second PCR motion in December

2014. [7-1] at 5–12.7 The trial court dismissed it, finding that Bevalaque “plainly” was not entitled to relief. at 73. Bevalaque appealed. [6-6]. And the Mississippi Court of Appeals affirmed in August 2016. The record does not show what happened between then and 2020. But sometime in (or around) early 2020, Bevalaque wrote to the Mississippi Bar about getting his discovery. [7-4] at 61. And in April 2020, his trial counsel at last sent over “about forty sheets” of discovery. Bevalaque took about six months to “read,

digest[,] and research” the discovery. [10] at 4. Proceeding pro se, he then filed a third PCR motion in November 2020. [7-4] at 7–46. The trial court dismissed it as untimely and successive. [6-7]. Bevalaque appealed. [6-8]. And the Mississippi Court of Appeals affirmed on April 26, 2022. Bevalaque filed his [1] Petition 363 days later. It raised three grounds: multiplicity, disproportionate sentencing, and ineffectiveness. [2] at 1–21. None of

his arguments mentioned the discovery. 8

6 The docket shows about 15 months of inactivity. [6-2] at 2. It is unclear what, if any, action Bevalaque took during that time. 7 The second motion was similar to the first. [6-3], [7-1] at 5–12. But it said something new: that Bevalaque “ha[d] not been able to contact” his trial counsel, but he “should be able to provide [certain discovery] within 30 days.” [7-1] at 10. 8 To be sure, he made two -based arguments. First, he argued that his trial counsel never checked whether “there were any images at all”—“much less” child pornography—on the DVDs and laptop. [2] at 17; at 3 (similar). But he didn’t need to make that argument. Indeed, he made it in his 2014 PCR motion. [7- 1] at 9. Second, he said (without citation) that police “actually seized” two DVDs, not five. * * * Against that backdrop, the Court takes up the [12] Report and [14] Objection. II. Standard

The Court reviews de novo the portions of the [12] Report to which Bevalaque objects. 28 U.S.C. § 636(b)(1). It reviews the remaining portions under a clearly erroneous, abuse-of-discretion, and contrary-to-law standard of review. , 864 F.2d 1219, 1221 (5th Cir.

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