IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-40129

USDC No. 1:97-CV-565

 

SETH A. McDONALD,

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

---------------------

June 1, 1998

Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

BY THE COURT:

Seth A. McDonald, Texas prisoner #755788, seeks a

certificate of appealability (COA) to appeal from the dismissal

of his habeas corpus petition as time-barred pursuant to 28

U.S.C. § 2244(d). When the district court’s denial of the motion

was based upon a procedural, non-constitutional reason, such as a

limitations period, this court employs a two-step process. 

Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). First, this

court must decide if McDonald has made a credible showing that

his claim is not procedurally barred. Second, this court must
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determine if McDonald’s underlying claim that he was denied a

constitutional right is debatable among reasonable jurists. Id.

The district court adopted the magistrate judge’s finding

that McDonald filed his state application for habeas corpus on

February 6, 1997. The date that McDonald filed his application

is not in the record. In addition, neither the magistrate judge

nor the district court considered McDonald’s allegation that he

filed a petition for reconsideration with the Texas Court of

Criminal Appeals. Without the state court papers, we cannot

determine whether the district court correctly and completely

computed the applicable tolled period. McDonald also presents a

facially substantial question whether he has been denied a direct

appeal in the state courts as a result of his counsel’s

ineffectiveness or some state procedural error.

In addition, considering McDonald’s allegation that he was

denied a direct appeal because of his counsel’s ineffectiveness

or a state court’s procedural error, the district court might

also consider whether the doctrine of equitable tolling may be

and should be applied to the one-year limitations period. 

Although we have not addressed the issue, the Ninth Circuit has

held that the deadlines for filing habeas petitions imposed by

the AEDPA are not jurisdictional and that they are subject to

principles of equitable tolling for extraordinary circumstances

beyond a prisoner’s control. Calderon v. United States District
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Court, 128 F.3d 1283, 1287-89 (9th Cir. 1997), cert. denied, 118

S. Ct. 899, 1389 (1998). 

Therefore, IT IS ORDERED that McDonald’s motion for a COA is

GRANTED. The district court’s order dismissing McDonald’s action

as time-barred is VACATED and the case is REMANDED for

proceedings consistent with this order.

McDonald also moves this court for the appointment of

counsel. To the extent that McDonald seeks appointed counsel for

this appeal, the motion is DENIED AS UNNECESSARY. To the extent

that he seeks the appointment of counsel for further proceedings

in the district court, the motion is inappropriately before this

court. See Rule 8(c) of the Rules Governing § 2254 Cases. 

COA GRANTED. VACATED AND REMANDED.