Shabazz v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10609
Summary Calendar
CURTIS SHABAZZ, also known as Curtis Rollins,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-2450-P
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December 19, 2000
Before DAVIS, JONES, and DeMOSS, CIRCUIT JUDGES.
PER CURIAM:*
Curtis Shabazz, Texas prisoner No. 522178, moves this
court to hold the respondent strictly liable for allegedly perjured
affidavits made by employees of the Texas Department of Criminal
Justice; for a subpoena duces tecum to obtain copies of exhibits
submitted to the district court; and for emergency injunctive
relief due to alleged harassment and threats. The motions are
DENIED.
Shabazz’s federal habeas petition was dismissed by the
district court as untimely under the Antiterrorism and Effective
*
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opinion should not be published and is not precedent except under the limited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.
No. 99-10609
-2-
Death Penalty Act (AEDPA). This court granted Shabazz a
certificate of appealability on the issue whether the 28 U.S.C.
§ 2244(d)(1) limitations period was equitably tolled until Shabazz
received actual notice of the enactment of the AEDPA. Shabazz v.
Johnson, No. 99-10609 (Feb. 3, 2000).
Shabazz argues that the limitations period should be
equitably tolled in his case because he first learned that the
AEDPA had been enacted on September 4, 1997, well after the
limitations period expired. Shabazz asserts that he has been held
in administrative segregation since 1991; that he has no access to
television, radio, newspapers, or magazines other than the prison
newspaper, The Echo; that he is denied physical access to a law
library and can obtain legal materials only by providing their
exact citation; that the Texas Department of Criminal Justice did
not timely promulgate the AEDPA to administrative segregation
inmates; and that his claims were already time-barred by September
1997, when he first learned of the § 2244(d)(1) limitations period
by reading an article published in the July 1997 issue of The Echo.
The one-year limitations period of the AEDPA is a statute
of limitations that is not jurisdictional and is subject to
equitable tolling. Molo v. Johnson, 207 F.3d 773, (5th Cir. 2000).
“In rare and exceptional circumstances” principles of equitable
tolling may apply to both the limitations period in
§ 2244(d) and to the one-year grace period allowed prisoners whose
convictions became final prior to the enactment of the AEDPA.
Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert.
denied, 526 U.S. 1074 (1999); Fields v. Johnson, 159 F.3d 914, 915-
No. 99-10609
-3-
16 (5th Cir. 1998); see Flanagan v. Johnson, 154 F.3d 196, 200 (5th
Cir. 1998). We review the district court's denial of the
application of the equitable tolling doctrine for abuse of
discretion. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
The equitable tolling doctrine applies when the plaintiff
is actively misled about the cause of action or is “prevented in
some extraordinary way from asserting his rights.” Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120
S. Ct. 1564 (2000). A movant’s incarceration prior to the passage
of the AEDPA, his ignorance of the law, and his pro se status
during the applicable filing period are not “rare and exceptional”
circumstances that merit equitable tolling. Felder v. Johnson, 204
F.3d 168, 171-73 (5th Cir.), petition for cert. filed, (U.S. May 8,
2000) (No. 99-10243); Barrow v. New Orleans S.S. Ass’n, 932 F.2d
473, 478 (5th Cir. 1991).
Shabazz does not suggest that TDCJ officials
affirmatively prevented him from filing an application for federal
habeas relief at an earlier date. The record shows that Shabazz
filed his third application for state habeas relief after the AEDPA
was enacted; that his incarceration in administrative segregation
has not prevented him from making court filings challenging the
validity of his conviction; and that he had approximately four-and-
one-half months during which he could have filed a timely federal
habeas application following the dismissal of his third state
habeas application. Thus, we find no abuse of discretion in the
district court’s determination that Shabazz’s federal habeas
petition is time-barred.
No. 99-10609
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We lack jurisdiction to review Shabazz’s argument that
the Texas Department of Criminal Justice violated his
constitutional right of access to the courts by failing to provide
him with notice of the AEDPA limitations period because we did not
grant a COA on this issue. Sonnier v. Johnson, 161 F.3d 941, 946
(5th Cir. 1998).
AFFIRMED; MOTIONS DENIED.