* 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that this opinion should not be published and is not precedent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.

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.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:98-CV-15

- - - - - - - - - -

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. 
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

-3-

§ 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.