United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on Petitioner Darex Antonio Chester
(“Chester”)'s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 [Doc.
1]; on Defendant Commissioner of Mississippi
Department of Corrections (“MDOC”) Pelicia Hall
(“Hall”)'s Motion to Dismiss [Doc. 6] the
petition as untimely pursuant to 28 U.S.C § 2244(d); on
United States Magistrate Judge F. Keith Ball's Report and
Recommendation [Doc. 7]; on Chester's
“Rare and Exceptional Circumstances to Warrant
Equitable Tolling” [Doc. 8]; and on Hall's Response
in Opposition [Doc. 10].
filed a “Rare and Exceptional Circumstances to Warrant
Equitable Tolling” ten (10) days after the Report
and Recommendation was entered. Because this filing occurred
within the fourteen (14) day limit to file an Objection, the
Court interprets his filing as an Objection to the Report and
Recommendation. This Court ADOPTS the Report and
Recommendation and DISMISSES the action WITH PREJUDICE.
was convicted in the Circuit Court of Pike County,
Mississippi, of four counts of unlawful sale of controlled
substances. Chester was sentenced as a habitual offender and
a prior drug offender to sixty (60) years each on Counts I
and II. Doc. 6-1. He was also sentenced to forty (40) years
each on Counts III and IV. Id. All his sentences run
concurrently, without eligibility of parole or probation.
Id. On February 16, 2016, the Mississippi Court of
Appeals affirmed Chester's convictions and sentences.
Chester v. State, 201 So.3d 506 (Miss. App. 2016);
see Doc. 6-5. His petition for rehearing was denied on July
19, 2016. Id. His petition for writ of certiorari to
the Mississippi Supreme Court was denied on October 6, 2016.
Chester v. State, 203 So.3d 1132 (Miss. 2016).
Chester filed no petition for writ of certiorari to the
United State Supreme Court. On January 4, 2017, Chester
signed an “Application for Leave to Proceed in the
Trial Court” and a “Motion for Post-Conviction
Collateral Relief”, which were stamped as filed on
January 6, 2017. Doc. 6, p.4; Doc. 6-6. The Mississippi
Supreme Court denied the application on January 25, 2017.
Doc. 6-7. Chester filed his § 2254 petition with this
Court on April 12, 2018.
is a one-year statute of limitation for petitions for writs
of habeas corpus under § 2254. 28 U.S.C. § 2244(d);
see Holland v. Fla., 560 U.S. 631, 645 (2010). A
state prisoner's conviction becomes final for purposes of
§ 2244 ninety (90) days after the judgment is entered,
when the time to file a petition for writ of certiorari with
the Supreme Court has expired. Roberts v. Cockrell,
319 F.3d 690, 693 (5th Cir. 2003); see Flanagan v.
Johnson, 154 F.3d 196, 197 (5th Cir. 1998). Therefore,
Chester's judgment became final when the ninety (90) day
period for filing a petition for writ of certiorari to the
United States Supreme Court expired. The 90-day period
started when Chester's writ of certiorari to the
Mississippi Supreme Court was denied on October 6, 2016.
Therefore, the 90-day period expired on January 4, 2017.
Chester had one year from that date, or until January 4,
2018, in which to file for federal habeas relief, subject to
tolling under § 2244(d)(2): “The 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.” Chester
was afforded twenty-two (22) days of statutory tolling of his
application to the Mississippi Supreme Court, beginning on
January 4, 2017, and denied on January 25, 2017. Therefore,
the statute of limitations for Chester's habeas corpus
petition ended on January 26, 2018 - one year and 22 days
from January 4, 2017.
Judge Ball's Report and Recommendation, Chester filed an
Objection [Doc. 8], and Hall responded in opposition [Doc.
prisoner is entitled to equitable tolling only if he shows
that (1) he has been pursuing his rights diligently; and (2)
some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Fla., 560
U.S. 631, 649 (2010). The diligence standard for equitable
tolling is reasonable diligence. 560 U.S. at 653 (internal
citations omitted). To qualify for equitable tolling,
Chester's failure to satisfy the statute of limitations
must result from some external factors beyond his control.
In re Wilson, 442 f.3d 872, 875 (5th Cir. 2006)
(“Equity is not intended for those who sleep on their
rights.”)(citing Fisher v. Johnson, 174 F.3d
710, 715 (5th Cir. 1999)). Pro se status, illiteracy,
deafness, and lack of legal training are not external factors
excusing abuse of the writ. Felder v. Johnson, 204
F.3d 168, 171 (5th Cir. 2000)(internal citations omitted).
states that he timely submitted his petition for writ of
habeas corpus on May 8, 2017, to his attorney “L.V.
Williams.” Doc. 8, p.2. Chester claims that
“through circumstances unknown, ” the Mississippi
Department of Corrections (“MDOC”) Deputy
Commissioner of Institutions Jerry Williams (“DCI
Williams”) received the habeas corpus petition.
Id. Chester asserts he had never received his
petition from “D.C.I. Williams .” Doc. 8, p.3.
Therefore, Chester claims he had no knowledge that his habeas
corpus petition was not filed until Chester had received
“‘Notice' Pursuant to ‘Document G'
Dated' May 21, 2018.” Id. Chester asserts
that he does not have a “legal eye” and that he
wasted no time filing his habeas corpus. Id.
argues that Chester's allegations are defeated by the
information submitted by Chester to this Court in his own
filings in this case. Doc. 10, p.5. Chester filed his federal
habeas corpus petition pro se, which was signed on April 12,
2018. Doc. 1, pp.24-5. Hall contends that
Chester's claim that Chester was unaware that a habeas
petition was not filed on his behalf until he received notice
in the Motion to Dismiss [Doc. 6] in this case “is
clearly refuted by the fact that Chester filed the petition
over a month prior to that date.” Doc. 10, p.5; see
Docs. 1, 8.
also argues that a letter from Chester's attorney [Doc.
8-1, p.6.], which Chester attached to his Objection [Doc. 8],
refutes any claim that Chester was actively misled or
believed his habeas petition was filed prior to his pro se
filing. In the letter, dated November 7, 2017, his attorney
mentions a “preliminary look through.” This
letter shows that a preliminary look through was conducted
months after the date Chester alleges he expected his habeas
petition was filed by his attorney.
appeal may not be taken to the court of appeals from a final
order in a habeas corpus proceeding “unless a circuit
justice or judge issues a certificate of appealability”
(“COA”). Although Chester has not yet filed a
notice of appeal, the Court nonetheless addresses whether he
is entitled to a COA. See Alexander v. Johnson, 211
F.3d 895, 898 (2000)(“It is perfectly lawful for
district court[s] to deny COA sua sponte.”). A COA may
issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This requires an overview of the
claims in the habeas petition and a general assessment of the
claims' merits. Miller-El v. Cockrell, 537 U.S.
322, 326 (2003) . The ultimate question is whether reasonable
jurists would find the district court's assessment of the
constitutional claims debatable. Id.; see Slack
v. McDaniel,529 U.S. 473, 484 (2000). To prevail on an
application for a COA, Chester must make a “substantial
showing of the denial of a constitutional right, a
demonstration that . . . includes showing that reasonable
jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” United States v. Jones, 287 F.3d
325, 329 (5th Cir. 2002)(internal citations and quotations
omitted). “The issue becomes somewhat more complicated
where . . . the district court dismisses the petition based
on procedural grounds.” Slack, 529 at 484. The standard
for when a court denies a habeas petition on procedural
grounds without reaching the ...