Bankston v. Lee et al
MEMORANDUM OPINION re 14 Order on Motion to Dismiss. Signed by District Judge Sharion Aycock on 2/4/16. (jlm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 4:15CV142-SA-JMV
EARNEST LEE and
ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Charles Bankston,
Mississippi prisoner No. 128763, for a writ of habeas corpus pursuant 28 U.S.C. § 2254.
Respondents have moved to dismiss the petition as untimely pursuant to 28 U.S.C. § 2244, and
Petitioner has responded thereto. The matter is now ripe for resolution. For the reasons set forth
below, Respondents’ motion is granted, and the instant petition is dismissed with prejudice.
Facts and Procedural History
In the Circuit Court of Montgomery County, Mississippi, Petitioner was convicted of two
counts of sexual battery of his daughter and was sentenced by order filed April 13, 2007, to serve
concurrent sentences on each count in the custody of the Mississippi Department of Corrections.
See Mot. to Dismiss, Ex. A. Petitioner, through counsel, appealed his judgments of conviction.
On September 9, 2008, the Mississippi Court of Appeals affirmed the judgment of the circuit
court. See id., Ex. B; see also Bankston v. State, 4 So. 3d 377 (Miss. Ct. App. 2013), reh’g
denied, December 9, 2008, cert. denied, March 12, 2009 (Cause No. 2007-KA-00929).
Petitioner did not seek certiorari review with the United States Supreme Court.
Petitioner, proceeding pro se, mailed an application for leave to seek post-conviction
relief to the Mississippi Supreme Court that was stamped “filed” in that court on July 29, 2015.
Mot. to Dismiss, Ex. C. The application was denied by Order filed July 29, 2015. Id., Ex. D
(Cause No. 2015-M-976).
Petitioner signed the instant petition for federal habeas relief on September 22, 2015, and
it was stamped as “filed” in this Court on September 28, 2015. ECF No. 1. On December 3,
2015, Respondents filed a motion to dismiss the instant action, arguing that the petition is
untimely. In response, Petitioner maintains that he is illiterate and was not informed of his
appeal, or the rejection thereof, by his attorney. He also maintains that the documents filed pro
se in his State-court proceedings and produced by Respondents are forgeries, and that he has
never seen the documents. ECF No. 12.
The instant petition for writ of habeas corpus is subject to the statute of limitations of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Egerton v. Cockrell, 334
F.3d 433, 436 (5th Cir. 2003). The issue of whether Respondents’ motion should be granted
turns on the statute’s limitation period, which provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of –
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or the laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
28 U.S. C. § 2244(d)(1). The federal limitations period is tolled while a “properly filed
application for State post-conviction or other collateral review” is pending. See 28 U.S.C. §
2244(d)(2). In “rare and exceptional circumstances,” the limitations period may be equitably
tolled. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).
A state judgment generally becomes final on direct review “upon denial of certiorari by
the Supreme Court or expiration of the period for seeking certiorari.” Ott v. Johnson, 192 F.3d
510, 513 (5th Cir. 1999). In this case, Petitioner did not seek certiorari review with the United
States Supreme Court following his direct appeal, and therefore, his judgment became “final”
within the meaning of § 2244(d) on June 10, 2009, ninety days after the Mississippi Supreme
Court denied certiorari review in this case.1 See 28 U.S.C. § 2101(c); Gonzalez v. Thaler, ___
U.S. ___, 132 S. Ct. 641, 653-54 (2012) (holding that when a petitioner does not pursue direct
review all the way to the Supreme Court, “the judgment becomes final at the ‘expiration of the
time for seeking such review’– when the time for pursuing direct review in this Court, or in state
court, expires”). Therefore, Petitioner must have filed a “properly filed” application for postconviction relief on or before June 10, 2010, to toll the limitations period, or his federal habeas
petition was filed too late.
Petitioner did not file for post-conviction relief in State court until 2015, approximately
The exceptions set forth in § 2244(d)(1)(B-D) are not applicable in this case.
five years after the federal limitations period expired. Therefore, he is not entitled to statutory
tolling under 28 U.S.C. § 2244(d)(2) during the pendency of his State post-conviction
Petitioner’s federal habeas petition was “filed” sometime between the date it was signed
on September 22, 2015, and when it was received in this Court on September 28, 2015. See
Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (holding that the “mailbox rule” deems a
pro se prisoner’s petition filed on the date it is delivered to prison officials for mailing).
Therefore, the instant petition was filed over five years after the expiration of the federal
Accordingly, federal habeas relief is available to Petitioner only if he can demonstrate
that his case involves “rare and exceptional circumstances” that would warrant an equitable
tolling of the limitations period. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000). The
Supreme Court has held that a petitioner is entitled to equitable tolling only if he shows (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (quotation
marks and citations omitted). The Fifth Circuit has also held that equitable tolling is available
“if the [petitioner was] actively misled by the defendant about the cause of action or [was]
prevented in some extraordinary way from asserting his rights.” Lookingbill v. Cockrell, 293
F.3d 256, 264 (5th Cir. 2002) (citations omitted). Petitioner maintains that he is entitled to
equitable tolling because he is illiterate, and that he was “not informed by the court or his appeal
attorney that he had an appeal or when his case was denied in the Mississippi appellate courts.”
ECF No. 1 at 13.
The Court notes that a petitioner’s illiteracy does not demand a tolling of the federal
limitations period. Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (equitable tolling is not
required simply because a petitioner is unfamiliar with the law, is unrepresented, or is illiterate).
The Court otherwise finds that the above-cited procedural history reflects that Petitioner,
proceeding pro se, has been able to file in documents in both this Court and in the Mississippi
Supreme Court. See, e.g., Mot. to Dismiss, Exs. C and D; ECF No. 1. Therefore, Petitioner’s
alleged illiteracy is not grounds for equitable tolling.
Respondents otherwise claim that the State court record contains letters and pleadings
that belie Petitioner’s claim that he was unaware of his appeal or the court’s ruling on his appeal,
as he filed pro se motions for rehearing and a pro se petition for a writ of certiorari with the
Mississippi Supreme Court following the rejection of his appeal. See id., Ex. E. Petitioner
argues that he did not file a motion for rehearing or a petition for a writ of certiorari, and that his
signature on the documents is forged. See ECF No. 12.2 He attaches to his response a “drill
down” report showing the location of his housing at the Mississippi State Penitentiary during the
period in question, arguing that this report proves he was not housed in the units stated on the
face of the pleadings filed in State court. See id.
Petitioner offers the Court no explanation as to why someone unknown to him would file
numerous pleadings in State court on Petitioner’s behalf in an attempt to overturn his conviction.
Additionally, the fact that some State-court documents list Petitioner’s housing zone assignment
incorrectly is not dispositive of the issue of whether he filed the documents or knew of their
existence, as Petitioner admits that he is illiterate and relies upon “writ writers” to draft his legal
pleadings and all of the documents were sent from Parchman, where Petitioner is housed.
Moreover, Petitioner’s Inmate Legal Assistance Program (“ILAP”) records, which were
produced by Respondents in reply to Petitioner’s claims of forgery, demonstrate that Petitioner
was in fact aware of his appeal in State court. See ECF No. 13, Ex. 2 and Ex. 3. Therefore,
Petitioner cites no “rare and exceptional” circumstances to warrant equitable tolling.
The Court notes that Petitioner’s post-conviction pleadings were filed pro se, and he
does not assert that they were forged.
Additionally, Petitioner’s ILAP records indicate that Petitioner requested a postconviction pack in May 2013, demonstrating that Petitioner knew of the rejection of his appeal.
Id., Ex. 2 at 11. He did not seek post-conviction relief in the Mississippi Supreme Court until
July 2015, over two years later. The Court notes that even if Petitioner had proven that “rare and
exceptional” circumstances exist in this case, he must still demonstrate a diligent pursuit of his
available remedies in order to avail himself of equitable tolling. See, e.g., Melancon v. Kaylo,
259 F.3d 401, 408 (5th Cir. 2001). A delay of two years in filing for post-conviction relief does
not reflect a diligent pursuit of remedies, and therefore, Petitioner is not entitled to equitable
tolling. See id. at 408 (finding four month delay in filing petition after state court ruling did not
warrant equitable tolling).
Accordingly, Respondents’ motion will be granted, and the instant petition will be
dismissed as untimely.
Certificate of Appealability
Petitioner must obtain a COA before appealing this Court’s decision denying federal
habeas relief, which he may do by making “a substantial showing of the denial of a constitutional
right.” See 28 U.S.C. § 2253(c)(1) and (2). Because the instant petition is rejected on procedural
grounds, Petitioner must demonstrate “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling” in order to obtain
a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard, the Court
concludes that a COA should be denied in this case.
For the reasons set forth herein, the Court GRANTS Respondents’ “Motion to Dismiss
Pursuant to § 2244(d)”  and DISMISSES with prejudice the petition filed in this cause. A
certificate of appealability is DENIED. All pending motions are DISMISSED as moot. A final
judgment will enter separately.
SO ORDERED this the 4th day of February, 2016.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
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