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Shabazz v. Johnson ( 1998 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10420
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.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-2450-P
- - - - - - - - - -
November 13, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
This appeal is SEVERED from Shabazz v. Johnson, appeal No.
98-40446.   Curtis Shabazz, Texas prisoner No. 522178, seeks a
certificate of appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred under
28 U.S.C. § 2244(d)(1).   COA is GRANTED and the case is VACATED
AND REMANDED to the district court for further proceedings
consistent with this opinion.
*
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that this opinion should not be published and is not precedent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. 98-10420
-2-
Shabazz argues that principles of equitable tolling dictate
that his petition is not time-barred because 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
(TDCJ) did not timely promulgate the Antiterrorism and Effective
Death Penalty Act (AEDPA) to administrative segregation inmates;
and that Shabazz did not learn of the § 2244(d)(1) limitations
period** until he read an article published in the July 1997
issue of The Echo.
In appeals where the district court has denied habeas relief
based on a procedural, nonconstitutional ground, we apply a two
step COA process.    See Murphy v. Johnson,
    110 F.3d 10
    , 11 (5th
Cir. 1997).   First, the prisoner must make a credible showing
that the district court erred in denying habeas relief on the
nonconstitutional ground.    See
    id. Second, we 
    must consider
whether he has made a substantial showing of the denial of a
constitutional right with respect to his underlying conviction.
See
    id. This court 
    has determined that the one-year statute of
limitations in § 2244(d)(1) is subject to equitable tolling in
appropriate extraordinary circumstances.     See Davis v. Johnson,
**
Absent equitable tolling, the last possible date on which
Shabazz could have timely sought federal habeas relief was April
23, 1997. United States v. Flores,
    135 F.3d 1000
    , 1006 (5th Cir.
1998) (§ 2255 case).
No. 98-10420
-3-
No. 98-20507,
    1998 WL 733731
    , at *6 (5th Cir. Oct. 21, 1998);
accord Miller v. New Jersey State Dep’t of Corrections,
    145 F.3d 616
    , 617-18 (3d Cir. 1998); Miller v. Marr,
    141 F.3d 976
    , 978
(10th Cir.), cert. denied,
    1998 WL 407280 
    (U.S. Oct. 5, 1998)
(No. 98-5195); Calderon v. United States Dist. Court,
    128 F.3d 1283
    , 1287-88 (9th Cir. 1997), cert. denied,
    118 S. Ct. 899 
    (1998).
The district court erred by failing to address the factual
and legal arguments Shabazz presented in support of his claim of
equitable tolling.   Further factual development, including an
evidentiary hearing, may be necessary to resolve the equitable
tolling issue.
We note that Shabazz’s petition raises arguments, cognizable
in federal habeas, which have not been addressed in the first
instance by the district court and which were not considered by
the district court in its determination whether a COA should
issue.    See Muniz v. Johnson,
    114 F.3d 43
    , 45 (5th Cir. 1997);
United States v. Youngblood,
    116 F.3d 1113
    , 1114 (5th Cir. 1997).
This opinion expresses no intimation as to the ultimate
outcome of this appeal.   However, we note that the AEDPA
limitations period should only be equitably tolled in “rare and
exceptional circumstances.”    Davis, No. 98-20507,
    1998 WL 733731
    ,
at *6.
APPEAL SEVERED FROM NO. 98-40446; COA GRANTED; VACATED AND
REMANDED.