*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opinion should not be published and is not precedent except under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

United States Court of Appeals

Fifth Circuit

FILED

July 31, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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
2

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
3

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)).
4

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
5

as to this issue, the court is without jurisdiction to consider it.

See Lackey, 116 F.3d at 151.)

AFFIRMED