United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 13, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
________________________
No. 00-10421
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JACK DONALD EGERTON, JR.,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent - Appellee.
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Appeal from United States District Court
for the Northern District of Texas
_______________________________________________
Before DeMOSS, STEWART, and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Jack Donald Egerton, Jr. (“Egerton”), a Texas state prisoner, appeals the district court's
dismissal of his 28 U.S.C. § 2254 petition as time-barred. For the reasons stated below, we vacate
the district court’s dismissal and remand for further proceedings in accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal is the culmination of two previous grants of certificate of appealability (“COA”)
by this Court. The underlying facts are as follows: Egerton pled guilty to aggravated robbery on
February 12, 1996, and was sentenced to 20 years imprisonment. Following his conviction, Egerton
did not file a direct appeal. On June 9, 1998, Egerton filed a state habeas application, which was
denied by the Texas Court of Criminal Appeals without written order on September 16, 1998. At
the earliest, Egerton filed a § 2254 petition on October 1, 1998,1 alleging the following errors: (1)
involuntary confession, (2) ineffective assistance of counsel, (3) insufficient evidence, and (4)
erroneous sentence enhancement.
The State moved to dismiss Egerton’s § 2254 petition as time-barred by § 2244. Egerton
responded that he was precluded from filing a direct appeal because he was denied all access to a law
library and any legal materials. Immediately following his conviction, Egerton was placed in “K
Housing” at the Middleton Transfer Facility. Egerton contended that he filed numerous “I-60" forms
requesting legal materials, but was informed by prison officers to cease filing these requests because
law library privileges were unavailable to prisoners in K Housing. Egerton was then transferred to
the Choice Moore Unit on May 31, 1996. Although he had access to a library at the Choice Moore
Unit, Egerton contended the library was inadequate because it lacked the federal materials necessary
for him to pursue habeas relief. Egerton also claimed that he was denied access to the library on
several occasions because of the small size of the room. He alleged that he requested books from
other prison libraries, but did not receive the requested books. Egerton further asserted that the book
containing 28 U.S.C. § 2244(d)(1) was not available at this facility.
Egerton was transferred on March 17, 1998 to the Rufe Jordan Unit in Gray County, where
1
Although the district court used the file stamp date, October 9, 1998, the record shows that
Egerton executed his petition on October 1, 1998. The petition was filed on the date the petition was
submitted to prison authorities for mailing to the district court. See Sonnier v. Johnson, 161 F.3d
941, 945 n.2 (5th Cir. 1998).
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he claimed an adequate library was available. As a result, he filed his state post-conviction petition
on June 9, 1998. His federal habeas petition was filed on or about October 1, 1998, less than a month
after his state application was denied.
The magistrate judge correctly noted that the one-year statute of limitations period imposed
by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) became effective on April 24,
1996. § 2244(d)(1). Egerton did not file a direct appeal following his conviction on February 12,
1996, thus his conviction became final on March 13, 1996, when the time for seeking a direct appeal
expired. Because Egerton’s conviction became final prior to the AEDPA’s effective date, he had
until April 24, 1997 to file his federal habeas petition. See Flanagan v. Johnson, 154 F.3d 196, 200-
02 (5th Cir. 1998). Egerton’s petition, filed at the earliest on October 1, 1998, is untimely on its face.
Egerton’s state habeas application, filed on June 9, 1998, did not toll the limitations period because
it was filed after the one-year grace period.2 The magistrate judge concluded that Egerton was not
entitled to statutory tolling under § 2244(d)(1)(B) or equitable tolling. The district court denied
Egerton’s objections, adopted the magistrate judge’s recommendation, entered a judgment dismissing
the petition, and denied Egerton’s subsequent request for a COA. Egerton filed a timely notice of
appeal.
This Court granted a COA with a limited remand to the district court for a determination of
“whether Egerton was aware of the existence of AEDPA prior to the expiration of the limitations
period.” Upon remand, the magistrate judge issued an order instructing the State to file “a pleading
setting forth any evidence or information which bears upon the issue remanded,” and allowing for
Egerton to do the same. Both the State and Egerton filed responsive pleadings. The State argued
Egerton conceded to the validity of the filing dates.
2
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that statements and arguments made by Egerton in prior pleadings implied that he knew of the
existence of the AEDPA before the expiration of the limitations period, or constituted an admission
of the same. The State further argued that “ignorance of the law and lack of legal assistance, even
for an incarcerated prisoner, generally do not excuse prompt filing.” Noticeably missing from the
State’s response to the magistrate judge’s order, however, was any “evidence or information” that
a copy of the AEDPA was available to Egerton at any of the facilities where he was held. As the
magistrate judge explained:
[The State] failed to provide the Court with any evidence whatsoever that the Choice
Moore Unit did, in fact, have t he AEDPA in its law library during the period in
question. [The State] has also failed to provide the Court with any information as to
when the statute was received by the Choice Moore Unit. Further, [the State] has
failed to rebut petitioner’s argument that the AEDPA was not available to him at the
Choice Moore Unit or otherwise.
The magistrate judge held that there was “no evidence to support a finding that [Egerton] had actual
knowledge of the AEDPA prior to the expiration of limitations on April 24, 1997.” The district court
overruled the State’s objections and entered an order adopting the magistrate judge’s findings on
remand.
This Court then granted a second COA to determine “whether the inadequacy of [Egerton’s]
prisons’ law libraries constituted a state created impediment under § 2244(d)(1)(B).” For the
following reasons, we vacate the district court’s dismissal and remand for further proceedings in
accordance with this opinion.
DISCUSSION
In a federal habeas corpus case, we review the district court’s findings of fact for clear error,
but decide any questions of law de novo. Bernard v. Collins, 958 F.2d 634, 636 (5th Cir. 1992).
The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. 28
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U.S.C. § 2244(d)(1). The limitations period usually begins to run when the state court judgment
becomes final after direct appeal, or the time for seeking such review expires. Id. § 2244(d)(1)(A).
For prisoners like Egerton, whose state convictions became final before the AEDPA was passed, the
limitations period commenced on the AEDPA’s effective date, April 24, 1996. See United States
v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998). Thus, absent statutory or equitable tolling, Egerton
had until April 24, 1997, to file a petition under § 2254.
Section 2244(d)(1)(B) provides for statutory tolling as follows:
A 1-year period of limitation shall apply to an application for writ of habeas corpus
by a person in custody pursuant to the judgment of a State court. The limitation
period shall run from the latest of --
...
(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
...
In order to invoke § 2244(d)(1)(B), the prisoner must show that: (1) he was prevented from filing
a petition (2) by State action (3) in violation of the Constitution or federal law. This Court has also
recognized that the AEDPA's limitations period is not jurisdictional and is subject to equitable tolling.
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Equitable tolling is appropriate, however, only
in "rare and exceptional circumstances." Id.
Egerton argues that he was prevented by the State from seeking direct review and post-
conviction relief in state court, and prevented from seeking federal habeas relief due to inadequate
library facilities. He claims that the inadequate libraries constituted a “state created impediment,”
thereby tolling the AEDPA limitations period. The State maintains that Egerton’s allegations with
regard to the inadequacy of the law libraries are insufficient to justify statutory tolling as a
state-created impediment under § 2244(d)(1)(B). In support of its position, the State relies on Scott
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v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), and Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.
2000).
The State’s reliance on Scott is misplaced. In Scott, this Court did not consider whether the
inadequacy of a prison library constituted a state-created impediment to justify statutory tolling under
§ 2244(d)(1)(B). Instead, this Court restricted its analysis to equitable tolling because the petitioner
argued that the inadequate law library was a state-created impediment under the equitable tolling
doctrine. Scott, 227 F.3d at 263. We concluded that the petitioner had not diligently pursued relief
because the “impediment” was removed six months prior to the expiration of the limitations period
and he had not timely sought relief. Id. We also noted that “an inadequate law library does not
constitute a ‘rare and exceptional’ circumstance warranting equitable tolling.” Id. at n.3 (citation
omitted).
The Court in Felder addressed both equitable and statutory tolling doctrines. In Felder, the
petitioner advanced an equitable tolling argument that inadequacies in the law library prevented him
from discovering the AEDPA’s limitations period. 204 F.3d at 169 & n.1. We not only rejected this
equitable tolling argument, but also determined that the petitioner could not rely on § 2244(d)(1)(B),
the state-created impediment exception, because he had filed his petition prior to obtaining a copy
of the AEDPA. Id. at 171 n.9 (“His filing his petition prior to . . . the time he alleges he had access
to AEDPA, would also appear to make § 2244(d)(1)(B) unavailable to Felder.”). The Court further
stated that “[n]one of [the petitioner’s] circumstances, and particularly not his ignorance of the law,
can be said to be on a par with those conditions [listed in § 2244(d)(1)(B),(C), and (D)].” Id. at 172-
73.
This case is distinguishable from Felder, with regard to statutory tolling, in one very important
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respect - Egerton did not file his habeas petition prior to obtaining a copy of the AEDPA. Thus,
unlike in Felder where it was apparent that the inadequate law library did not prevent the petitioner
from filing a petition, Egerton did not file his state or federal habeas petitions until after he was
transferred to the Rufe Jordan Unit where he claims an adequate law library was available. Thus, we
find that the holding in Felder is not dispositive of our resolution of Egerton’s statutory tolling claim.
Cf. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (finding that the
unavailability of the AEDPA in a prison law library may create an “impediment” for purposes of §
2244(d)(1)(B)).
In ordering the limited remand to determine “whether Egerton was aware of the existence of
AEDPA prior to the expiration of the one year limitation period,” this Court cited to Balawajder v.
Johnson, No. 99-10807 (5th Cir. Apr. 5, 2001) (unpublished) in which this Court found that the lack
of a copy of the AEDPA in a prison library was not a state-created impediment under §
2244(d)(1)(B) when the petitioner knew of the AEDPA’s existence.3 In Balawajder, the petitioner
knew of the existence of the AEDPA as evidenced by his affirmative request for a copy of the
AEDPA and the fact that the warden had advised him to request the statute from a state library in
Austin. Id. at 2-3. Thus, the Court had “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” because the petitioner in Balawajder “knew that the
AEDPA existed and that it imposed a statute of limitations.” Id. at 3.
Our previous remand in this case instructed the district court to determine “whether Egerton
3
Unpublished opinions generally are not precedent. However, under FIFTH CIRCUIT RULE
47.5.4, unpublished opinions issued on or after January 1, 1996 may be persuasive.
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was aware o f the existence of AEDPA prior to the expiration of the limitations period.” The
magistrate judge specifically instructed the State to file a pleading set ting forth “any evidence or
information which bears upon the issue remanded.” The record reflects that the State did not avail
itself of this opportunity to provide the magistrate judge any evidence whatsoever that a copy of the
AEDPA was available to Egerton during the limitations period, nor did it argue to this Court that the
AEDPA was available at the Choice Moore Unit or otherwise. Accordingly, the district court found
“no evidence to support a finding that [Egerton] had actual knowledge of the AEDPA prior to the
expiration of limitations on April 24, 1997.” (emphasis in original). Although analysis under §
2244(a)(1)(B) is highly fact dependent, Whalem/Hunt, 233 F.3d at 1148, we are persuaded that
further remand for additional fact determinations is unnecessary in this case. Unlike in Balawajder,
the issue squarely before the Court today is whether absence of the AEDPA from the prison law
library invokes § 2244(a)(1)(B).
The State argues that because it did not take any “affirmative action” to prevent Egerton from
filing his application, § 2244(d)(1)(B) does not apply. Section 2244(d)(1)(B) provides, in relevant
part, that the limitations period begins to run on “the date on which the impediment to filing an
application created by State action . . . is removed, if the applicant was prevented from filing by such
State action.” § 2244(d)(1)(B) (emphasis added). We find that the State’s contention that an
“affirmative action” must be taken to impede the filing of a habeas application, and that failure to
provide an adequate law library is not such an affirmative action, is unpersuasive. The State’s failure
to make available to a prisoner the AEDPA, which sets forth the basic procedural rules the prisoner
must follow in order to avoid having his habeas petition summarily thrown out of court, including the
newly imposed statute of limitations, is just as much of an impediment as if the State were to take
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“affirmative steps” to prevent the petitioner from filing the application. The absence of all federal
materials from a prison library (without making some alternative arrangements to apprise prisoner’s
of their rights) violates the First Amendment right, through the Fourteenth Amendment, to access to
the courts. Bounds v. Smith, 430 U.S. 817 (1977) (requiring adequate prison law libraries or some
alternative means of informing prisoners about their legal rights and options); Lewis v. Casey, 518
U.S. 343 (1996) (narrowing Bounds to require only such legal information as relates to challenging
the prisoners’ convictions and conditions of confinement). Accordingly, a state’s failure to provide
the materials necessary to prisoners to challenge their convictions or confinement, in this case a copy
of the very statute that is being used to render Egerton’s petition time-barred, constitutes an
“impediment” for purposes of invoking § 2244(d)(1)(B).
CONCLUSION
We conclude that an inadequate prison law library may constitute a state created impediment
that would toll the AEDPA's one-year limitations period pursuant to § 2244(d)(1)(B). For the
reasons stated above, we conclude that Egerton’s one-year limitation period under the AEDPA did
not begin to run until March 17, 1998, when Egerton was transferred to a facility where a copy of
the AEDPA was available. Accordingly, we VACATE the district court’s dismissal of Egerton’s
claim as time-barred and REMAND for further proceedings in accordance with this opinion.
VACATE and REMAND.
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