IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60939 Summary Calendar

CHARLES TORNS, JR., also known as Charles Torns,

Petitioner-Appellant,

versus

STATE OF MISSISSIPPI; ROBERT ARMSTRONG,

Respondents- Appellees.

-------------------------------------------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:00-CV-905-BN -------------------------------------------------------- November 22, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Charles Torns, Jr., Mississippi prisoner # 32205, seeks a certificate of appealability (COA)

to appeal the district court’s dismissal as untimely of his

petition challenging his

1993 convictions for mail fraud and uttering forgery. In order to obtain a COA, Torns must make

a substantial showing of the denial of a constitutional right.

(c)(2).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Torns asserts that the district court erred in dismissing his federal petition as untimely. The

filing of his motion for transcripts in the trial court did not toll the limitations period because it did

not constitute “collateral review with respect to the pertinent judgment.” Moore v. Cain,

,

at *4-*6 (5th Cir. July 11, 2002)(No. 01-30953). Torns’s motions for

rehearing following the denial of his motions in the Mississippi Supreme Court did not entitle him to

tolling because they were not “properly filed” under Mississippi law. See Villegas v. Johnson,

, 470 n.2 (5th Cir. 1999); MISS. R. APP. P. 27(h). The “mailbox rule” does not apply to

Torns’s state filings. See Coleman v. Johnson,

(5th Cir. 1999).

However, the record indicates that Torns filed two postconviction applications in the trial

court challenging the same conviction, which were not considered by the State or by the district court

for tolling purposes. Reasonable jurists could find it debatable that the district court erred in

dismissing the federal petition as untimely, and a review of Torns’s issues reveals that he has

presented debatable claims of constitutional magnitude. See Slack v. McDaniel,

(2000). Consequently COA is GRANTED on the following issue: whether state postconviction

applications, filed in the trial court on February 17, 1998, and April 15, 1999, should serve to toll the

one-year limitations period. Because the record is insufficient to establish the propriety of the district

court’s ruling in light of these other habeas applications, the case is REMANDED to the district court

for further consideration of this issue.

Torns has moved for a temporary restraining order, a writ of prohibition, supplementation of

the appellate record, a stay of the proceedings until supplementation occurs, appointment of counsel,

permission to file a writ of habeas corpus under the All Writs Act, and for a remand of the case.

These motions are DENIED.

-2- COA GRANTED; JUDGMENT VACATED; CASE REMANDED; ALL OTHER

MOTIONS DENIED.

-3-