Wheeler v. Banks

Filing 10

ORDER granting 6 Motion to Dismiss; adopting Report and Recommendation 8 Signed by Honorable David C. Bramlette, III on February 9, 2018 (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOHNNIE EARL WHEELER

PETITIONER

v.

CAUSE NO. 5:17-CV-54-DCB-MTP

JACQUELYN BANKS

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
This cause is before the Court on Magistrate Judge F. Keith
Ball’s Report and Recommendation [Doc. 8] that the Court dismiss
with prejudice Johnnie Earl Wheeler’s Petition for Writ of Habeas
Corpus,

and Wheeler’s Objection

[Doc. 9]

to that Report and

Recommendation.
Magistrate

Judge

Ball

recommends

that

the

Court

dismiss

Wheeler’s Petition for Writ of Habeas Corpus because it is untimely
under the one-year limitation period of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) and not subject to
equitable tolling. Having reviewed the Report and Recommendation,
Wheeler’s Objection, and applicable statutory and case law, the
Court finds as follows:
I. BACKGROUND
Wheeler is serving a life sentence for murder in the custody
of the Mississippi Department of Corrections. Wheeler petitioned

the Court for a writ of habeas corpus after the Mississippi Parole
Board revoked his parole.1 Although Wheeler’s parole revocation
became final on March 19, 2015, Wheeler did not file his petition
for a writ of habeas corpus until April 26, 2017 —— over twentyfive months later.
Respondent

Jacquelyn

Banks

moved

to

dismiss

Wheeler’s

petition as untimely under 28 U.S.C. § 2244(d). And Magistrate
Judge Ball recommends that the Court grant Respondent’s motion and
dismiss Wheeler’s petition with prejudice.
Magistrate Judge Ball’s Report and Recommendation concludes
that Wheeler’s petition is untimely under the AEDPA’s one-year
limitation period because it was filed on April 26, 2017, more
than one year after the parole board revocation Wheeler sought to
challenge became final. Equitable estoppel does not toll the
AEDPA’s one-year limitation period, Magistrate Judge Ball reasons,
because

Wheeler

fails

to

show

the

“rare

and

exceptional

circumstances” required to justify tolling the statute.
Wheeler

objects

to

Magistrate

Judge

Ball’s

Report

and

Recommendation. Wheeler appears to argue that the AEDPA’s one-year
limitation period does not apply to decisions of a parole board.2
[Doc. 9, p. 8] Wheeler also argues, in a single, conclusory

2 The remainder of Wheeler’s Objection consists of generalized attacks on
“judicial activism” and allusions to Greek mythology and nineteenth century
German literature.

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sentence, that the AEDPA’s one-year limitation period cannot apply
to him because he is actually innocent of the shoplifting charges
that led the Mississippi Parole Board to revoke his parole. [Doc.
9, p. 8]
II. DISCUSSION
Because Wheeler fails to pinpoint the portions of the Report
and Recommendation to which he objects, the Court reviews de novo
the entirety of Magistrate Judge Ball’s Report and Recommendation.
See 28 U.S.C. § 636(b)(1)(C).
A.

Timeliness
Magistrate Judge Ball correctly concludes

that Wheeler’s

petition is untimely under the AEDPA’s one-year limitation period.
Under the AEDPA, a state prisoner such as Wheeler must file a
federal petition for habeas corpus within one year of “the date on
which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” 28 U.S.C.
2244(d)(1)(A).
The AEDPA’s limitation period began to run when Wheeler’s
parole revocation became final on March 19, 2015. And the period
expired one year later, on March 19, 2016. The period was not
tolled between March 19, 2015 and March 19, 2016 by operation of
28 U.S.C. § 2244(d)(2) because Wheeler at no point presented a

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“properly filed application for State post-conviction relief or
other collateral review.”
To

the

extent

Wheeler

objects

to

the

Report

and

Recommendation’s conclusion that his petition was untimely filed,
the objection lacks merit and is overruled.
B.

Equitable Tolling
Magistrate Judge Ball correctly concludes that Wheeler is not

entitled to invoke equitable tolling to excuse his untimely-filed
habeas petition.
To equitably toll the AEDPA’s one-year limitation period,
Wheeler must show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in
his way and prevented timely filing.” Manning v. Epps, 688 F.3d
177, 183 (5th Cir. 2012) (quoting Holland v. Florida, 560 U.S.
631, 649 (2010)). Wheeler shows neither.
But even assuming Wheeler has diligently pursued his rights,
he shows no “extraordinary circumstances” that prevented him from
timely filing his habeas petition. Examples of “extraordinary
circumstances” include when a petitioner is “actively misled by
the defendant about the cause of action,” Coleman v. Johnson, 184
F.3d 398, 402 (5th Cir. 1999), or when the Court “has led the
plaintiff to believe that she had done everything required of her.”
United States v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000).
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The only allegation even approaching an attempt to show an
“extraordinary circumstance” is Wheeler’s suggestion that he is
“unschooled in law.” [Doc. 9, p. 5] Lack of legal training,
however,
justifies

is

not

a

equitably

“rare

and

tolling

exceptional”

the

AEDPA’s

circumstance

one-year

that

limitation

period. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
To

the

extent

Wheeler

objects

Recommendation’s conclusion that

to

the

Report

and

equitable tolling should not

apply to excuse his untimely-filed petition for habeas corpus, the
objection lacks merit and is overruled.
C.

Applicability of the AEDPA’s Limitation Period to Parole
Revocation
Wheeler argues that the timeliness and equitable tolling

analyses are unnecessary because his habeas petition, attacking a
decision of the Mississippi Parole Board, is not subject to the
AEDPA’s limitation period.
Wheeler’s

argument

lacks

merit.

The

AEDPA’s

one-year

limitation period applies to parole board decisions. In Brown v.
Johnson, for example, the Fifth Circuit affirmed a district court’s
dismissal of a habeas petition challenging revocation of parole as
untimely under the AEDPA’s limitation period.3

3 Brown v. Johnson, 2000 WL 729065, at *2 (5th Cir. 2000) (per curiam).
See also Ledesma v. Stephens, 2016 WL 3660787, at *3 n.4 (S.D. Tex. Apr. 1,
2016)(assuming that the AEDPA’s limitation period applies to parole board
decisions); Williams v. Federal Dist. Court, 2012 WL 1570768, at *2 (E.D. Tex.
Mar. 16, 2012)(applying the AEDPA’s limitation period to challenge of parole

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D.

Actual Innocence
On the final pages of his Objection, Wheeler “argues actual

innocence of any charge of any crime allowing permanent revocation
of his parole.” [Doc. 9, pp. 8-9] No facts are provided; no new
evidence is offered.
Actual innocence, if proved, is an exception to the AEDPA’s
one-year limitation period. McQuiggin v. Perkins, 569 U.S. 383,
386 (2013). To prove actual innocence, a petitioner must convince
the Court “that, in light of the new evidence, no juror, acting
reasonably,

would

have

voted

to

find

him

guilty

beyond

a

reasonable doubt.” McQuiggin, 569 U.S. at 386 (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)).
Wheeler fails to meet the McQuiggin standard for pleading
actual innocence sufficient to

except his petition from the

AEDPA’s one-year limitation period. Because he has not identified
any new evidence, much less that which would preclude a reasonable
juror from finding him guilty, Wheeler fails to show actual
innocence under McQuiggin, and again fails to remove his untimelyfiled petition from the AEDPA’s one-year limitation period.

board decision); Armstrong v. Quarterman, 2006 WL 3103723, at *2 (N.D. Tex.
Nov. 2, 2006)(same).

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III. CONCLUSION
Because the target of Wheeler’s Objection is unintelligible,
the Court independently reviewed the entire record and reviewed de
novo

the

entirety

Recommendation.

of

Magistrate

Magistrate

Judge

Judge

Ball’s

Ball’s

findings

Report
of

fact

and
and

conclusions of law are correct. Wheeler’s objection lacks merit,
Wheeler is denied a certificate of appealability, and this action
shall be dismissed with prejudice.
ACCORDINGLY,
IT IS HEREBY ORDERED that Magistrate Judge F. Keith Ball’s
Report and Recommendation [Doc. 8] is ADOPTED as the findings and
conclusions of this Court;
FURTHER ORDERED that the petitioner Johnnie Earl Wheeler’s
Objections [Doc. 9] are OVERRULED, his Petition for a Writ of
Habeas Corpus

[Doc. 1]

is DISMISSED WITH PREJUDICE, and the

petitioner is DENIED a certificate of appealability.
A Final Judgment dismissing Wheeler’s Petition for Writ of
Habeas Corpus will follow in accordance with Federal Rule of Civil
Procedure 58.
SO ORDERED, this the 9th day of February, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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