IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40446
Summary Calendar
CURTIS SHABAZZ,
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 Eastern District of Texas
USDC No. 9:98-CV-15
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May 24, 1999
Before KING, Chief Judge, and BARKSDALE, and STEWART, Circuit
Judges.
PER CURIAM:*
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 judgment case is
VACATED and the case is 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that this opinion should not be published and is not precedent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. 98-40446
-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 argument for a COA is based on a
nonconstitutional issue, the prisoner must make a credible
showing that the district court erred in dismissing the
application. See Sonnier v. Johnson, 161 F.3d 941, 943 (5th Cir.
1998); Davis v. Johnson, 158 F.3d 806, 809 (5th Cir. 1998).
A habeas petitioner has one year from the date that his
conviction becomes final by the conclusion of direct review or
the expiration of the time for seeking such review to file a
habeas application. 28 U.S.C. § 2244(d)(1)(A). Statutory
exceptions to the accrual date of the one-year limitation period
include a state-created impediment to the petitioner’s filing of
an application; new constitutional rights recognized by the
Supreme Court and having retroactive application; and the
discovery of new facts supporting the claim which could not have
been discovered with due diligence on an earlier date. See
No. 98-40446
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§ 2244(d)(1)(B),(C),(D). The time during which a properly filed
application for state postconviction relief or other collateral
review is pending shall not be counted. See § 2244(d)(2). This
court has held that prisoners whose convictions became final
prior to the April 24, 1996, effective date of the AEDPA have a
one-year grace period in which to file applications for federal
habeas relief. United States v. Flores, 135 F.3d 1000, 1006 (5th
Cir. 1998) (§ 2255 case). Both the one-year statute of
limitations in § 2244(d)(1) and the grace period are subject to
equitable tolling in appropriate extraordinary circumstances.
Davis, 158 F.3d at 811; Fields v. Johnson, 159 F.3d 914, 915-16
(5th Cir. 1998).
The record is silent as to when Shabazz filed his petition
for state habeas relief. Absent the filing date of Shabazz’s
state habeas application, it cannot be determined whether his
federal petition is timely or untimely; thus, the district
court’s determination that Shabazz’s petition is time-barred
under § 2244(d)(1) is not supported by the record. See Magouirk
v. Phillips, 144 F.3d 348, 362-63 (5th Cir. 1998).
COA GRANTED; VACATED AND REMANDED.