United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS July 31, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40869
Summary Calendar
JOHN W. CHARLESTON,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(2:03-CV-109)
_________________________________________________________________
Before DAVIS, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
John W. Charleston, Texas prisoner #894099, appeals the
judgment dismissing as time barred his habeas-corpus application
challenging his 1999 aggravated robbery conviction. See 28 U.S.C.
§ 2244(d). The parties do not dispute Charleston’s conviction
becoming final on 19 June 2001. Accordingly, absent statutory or
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
equitable tolling, Charleston had one year, or until 19 June 2002,
within which to file a federal habeas application. See Flanagan v.
Johnson, 154 F.3d 196, 199 (5th Cir. 1998).
Charleston filed a petition for a writ of mandamus with the
Texas Court of Criminal Appeals on 7 February 2002; leave to file
was denied on 6 March 2002. A state habeas application was filed
on 20 May 2002; that application was dismissed, on Charleston’s
motion, on 18 September 2002. Charleston filed an “application for
writ of innocence” on 16 September 16 2002; it was later dismissed
on 20 November 2002 for noncompliance with state appellate rules.
Charleston filed another habeas application on 9 December 2002;
that application was denied without written order on 5 March 2003.
Charleston filed for federal habeas relief on 26 April 2003. In
June 2006, this court granted a certificate of appealability (COA)
on whether the district court abused its discretion in refusing to
equitably toll the limitation period.
Charleston first contends the limitation period was
statutorily tolled. Because this issue was not certified for
appeal, we do not consider it. See Lackey v. Johnson, 116 F.3d
149, 151 (5th Cir. 1997). On the other hand, because the pertinent
events inform our decision on the certified issue for appeal,
equitable tolling vel non, they are presented here.
“The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
2
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under” 28 U.S.C. § 2241(d)(1). 28 U.S.C.
§ 2244(d)(2). Because Charleston’s February 2002 mandamus
petition, which sought an order compelling the trial court to rule
on a pending motion for discovery, did not seek review of the
judgment pursuant to which he is incarcerated, it did not
constitute “other collateral review” for purposes of 28 U.S.C.
§ 2244(d)(2) and did not toll the limitation period. See Moore v.
Cain, 298 F.3d 361, 366–67 (5th Cir. 2002). The application for
“writ of innocence” was dismissed because Charleston failed to
comply with the Texas Rules of Appellate Procedure, and the
limitation period did not toll during the pendency of that
application. See Caldwell v. Dretke, 182 F. App’x 346, 347 (5th
Cir. 2006); Edwards v. Dretke, 116 F. App’x 470 (5th Cir. 2004).
Assuming that the first state habeas application (filed on 20
May 2002) tolled the limitation period, 335 days elapsed between
the date on which the conviction became final and the date on which
that application was filed. Accordingly, the limitation period
expired on 18 October 2002, 30 days after the date on which the
first state habeas application was dismissed. (Because the
application filed in December 2002 was filed after that October
date, it did not toll the limitation period. See Scott v. Johnson,
227 F.3d 260, 263 (5th Cir. 2000)).
3
For the certified issue, Charleston contends that the
limitation period should be equitably tolled because: he did not
receive actual notice of the denial of his last state habeas
application, filed in December 2002, until April 14, 2003; and he
pursued state relief diligently. A district court’s decision not
to allow equitable tolling is reviewed for abuse of discretion.
Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). The court did
not abuse its discretion. “[E]quitable tolling applies principally
where the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from
asserting his rights ....”. Id. (internal citations and quotation
marks omitted). Because Charleston’s state application was filed
after the federal limitation period expired, any delay in notifying
Charleston of the denial of that application could not have
prevented him from filing a timely federal habeas application.
Although Charleston contends his state habeas applications were
delayed while he pursued discovery, Charleston’s substantive claims
challenge the form of the indictment, the charge, and the trial
court’s jurisdiction—all facts known to him from the outset of the
criminal proceedings. Charleston was not diligent in pursuing
state relief. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir.
1999). (Charleston also asserts: the district court abused its
discretion by failing to apply properly the mandatory language of
TEX. CODE CRIM. P. art. 11.07 § 5; because COA has not been granted
4
as to this issue, the court is without jurisdiction to consider it.
See Lackey, 116 F.3d at 151.)
AFFIRMED
5