Chester v. Hall

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Report and Recommendations. Darex Antonio Chesters Motion Under 28 § 2254 [Doc. 1] is DENIED, and his Objection [Doc. 8] is DENIED, and this matter is DISMISSED WITH PREJUDICE. Signed by Honorable David C. Bramlette, III on 1/29/19 (PKM)

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

DAREX ANTONIO CHESTER

PETITIONER

V.

CAUSE ACTION NO. 5:18-cv-36-DCB-FKB

PELICIA HALL, Commissioner of MDOC

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Petitioner Darex Antonio
Chester (“Chester”)’s Petition for Writ of Habeas Corpus pursuant
to

28

U.S.C.

Mississippi

§

2254

Department

[Doc.
of

1];

on

Defendant

Corrections

Commissioner

(“MDOC”)

Pelicia

of

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].
Chester

filed

a

“Rare

and

Exceptional

Circumstances

to

Warrant Equitable Tolling” ten (10) days1 after the Report and
Recommendation was entered. Because this filing occurred within

“Under the ‘mailbox rule’, a prisoner’s federal habeas corpus petition is
deemed filed when he delivers the petition to prison officials for mailing to
the district court.” Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir.
1999)(citing Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998)). Chester’s
“Rare and Exceptional Circumstances to Warrant Equitable Tolling” was stamped
as Approved Legal Mail on December 20, 2018. Doc. 8-2. Therefore, Chester’s
filing is deemed filed on December 20, 2018.
1

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.
Background
Chester 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,

2

2017. Doc. 6-7. Chester filed his § 2254 petition with this Court
on April 12, 2018.2
Analysis
There 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

“Under the ‘mailbox rule’, a prisoner’s federal habeas corpus petition is
deemed filed when he delivers the petition to prison officials for mailing to
the district court.” Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir.
1999)(citing Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998)). Chester’s
petition was signed on April 12, 2018. Doc. 1. The envelope was stamped as
Approved Legal Mail on April 12, 2018. Doc. 1-2. Therefore, Chester’s petition
is deemed filed on April 12, 2018.
2

3

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.
Following Judge Ball’s Report and Recommendation, Chester
filed an Objection [Doc. 8], and Hall responded in opposition [Doc.
10].
A state 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

4

external factors excusing abuse of the writ. Felder v. Johnson,
204 F.3d 168, 171 (5th Cir. 2000)(internal citations omitted).
Chester 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

Commissioner

of

Department
Institutions

of

Corrections

Jerry

Williams

received the habeas corpus petition. Id.

(“MDOC”)
(“DCI

Deputy

Williams”)

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.
Hall 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, 20183. 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

3

See mailbox rule in Footnote 1.

5

“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.
Hall 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.
Certificate of Appealability
An 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
6

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 prisoner’s underlying

constitutional claim is the following standard: “a COA should issue
when the prisoner shows, at least, 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.” Id. The Fifth Circuit provides the following
analysis as well:
Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that
7

the petitioner should be allowed to proceed further. In
such a circumstance, no appeal would be warranted.
Id. The above described scenario fits the facts of this case. The
statute of limitations for filing a federal habeas petition clearly
expired before Chester filed his pro se federal habeas petition —
even with the allotted
entitled

to

any

further

§

2244(d)(2)
equitable

tolling. Chester is not

tolling.

Therefore,

after

considering the entire record, the Court concludes that jurists of
reason would not debate whether Chester stated a valid claim for
relief or whether a procedural ruling in this case is correct.
Accordingly,
IT

IS

ORDERED

that

Magistrate

Judge

Ball’s

Report

and

Recommendation [Doc. 7] is ADOPTED;
IT IS FURTHER ORDERED that Darex Antonio Chester’s Motion
Under 28 § 2254 [Doc. 1] is DENIED, and his Objection [Doc. 8] is
DENIED, and this matter is DISMISSED WITH PREJUDICE; and
IT IS FURTHER ORDERED that Darex Antonio Chester is DENIED a
Certificate of Appealability.
SO ORDERED this the 29th day of January, 2019.
_/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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