IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10807
JEFFREY BALAWAJDER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeals from the United States District Court
For the Northern District of Texas
(4:98-CV-1128-Y)
April 5, 2001
Before REYNALDO G. GARZA, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Petitioner’s habeas corpus petition was dismissed by the
district court as untimely, having been filed more than one year
after his conviction and after the passage of the Anti-Terrorism
and Effective Death Penalty Act. This Court granted a Certificate
of Appealability on two questions. First, should the AEDPA statute
of limitations have been equitably tolled because Balawajder’s
prison library did not receive a copy of the AEDPA until after the
*
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this opinion should not be published and is not precedent except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.
one year period; and second, did this Court have jurisdiction to
consider that question where Balawajder arguably did not present it
in his application to the district court for a COA. After that COA
was granted, we decided Felder v. Johnson,1 which held that
inadequacy of a prison law library did not warrant equitable
tolling. Balawajder therefore moved to expand the COA to include
the question of whether the absence of the AEDPA from his library
constituted a state-created impediment, preventing the statute of
limitations from running under 28 U.S.C. § 2244(d)(1)(B). We
granted his motion to expand the COA to include that question.
We hold that this Court does have jurisdiction to reach the
question of equitable tolling, because Balawajder’s pleading below
adequately indicated to the district court that he sought equitable
tolling. We further hold, however, that Felder controls this case,
and Balawajder is not entitled to equitable tolling.
We finally hold that, on these facts, the absence of the AEDPA
from the prison library was not a state-created impediment that
prevented Balawajder from filing. We note that the record reflects
Balawajder’s actual awareness of the existence of the AEDPA well
before the one-year period expired. In fact, Balawajder
affirmatively requested a copy of the AEDPA, on the grounds that he
knew it contained an important statute of limitations. Further,
the Warden advised Balawajder to request the AEDPA from the state
1
204 F.3d 168 (5th Cir. 2000).
2
library in Austin, and there is no evidence to suggest that
Balawajder did so. Therefore, we have no occasion to decide
whether § 2244(d)(1)(B) might be invoked by the absence of the
AEDPA from a prison library where the prisoner remains actually
ignorant of the very existence of the statute. Here, Balawajder
knew that the AEDPA existed and that it imposed a statute of
limitations. He was therefore not prevented from filing by its
absence.
AFFIRMED.
3
Balawajder v. Johnson
Combined Opinion