* 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that this opinion should not be published and is not precedent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. 98-10420

Summary Calendar

 

CURTIS SHABAZZ,

Also known as Curtis Rollins,

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 Northern District of Texas

USDC No. 3:97-CV-2450-P

- - - - - - - - - -

November 13, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

This appeal is SEVERED from Shabazz v. Johnson, appeal No.

98-40446. 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 the case is VACATED

AND REMANDED to the district court for further proceedings

consistent with this opinion. 
No. 98-10420

-2-

 

** Absent equitable tolling, the last possible date on which

Shabazz could have timely sought federal habeas relief was April

23, 1997. United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.

1998) (§ 2255 case).

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 district court has denied habeas relief

based on a procedural, nonconstitutional ground, we apply a two

step COA process. See Murphy v. Johnson, 110 F.3d 10, 11 (5th

Cir. 1997). First, the prisoner must make a credible showing

that the district court erred in denying habeas relief on the

nonconstitutional ground. See id. Second, we must consider

whether he has made a substantial showing of the denial of a

constitutional right with respect to his underlying conviction. 

See id. 

This court has determined that the one-year statute of

limitations in § 2244(d)(1) is subject to equitable tolling in

appropriate extraordinary circumstances. See Davis v. Johnson,
No. 98-10420

-3-

No. 98-20507, 1998 WL 733731, at *6 (5th Cir. Oct. 21, 1998);

accord Miller v. New Jersey State Dep’t of Corrections, 145 F.3d

616, 617-18 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978

(10th Cir.), cert. denied, 1998 WL 407280 (U.S. Oct. 5, 1998)

(No. 98-5195); Calderon v. United States Dist. Court, 128 F.3d

1283, 1287-88 (9th Cir. 1997), cert. denied, 118 S. Ct. 899

(1998).

The district court erred by failing to address the factual

and legal arguments Shabazz presented in support of his claim of

equitable tolling. Further factual development, including an

evidentiary hearing, may be necessary to resolve the equitable

tolling issue. 

We note that Shabazz’s petition raises arguments, cognizable

in federal habeas, which have not been addressed in the first

instance by the district court and which were not considered by

the district court in its determination whether a COA should

issue. See Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997);

United States v. Youngblood, 116 F.3d 1113, 1114 (5th Cir. 1997).

This opinion expresses no intimation as to the ultimate

outcome of this appeal. However, we note that the AEDPA

limitations period should only be equitably tolled in “rare and

exceptional circumstances.” Davis, No. 98-20507, 1998 WL 733731,

at *6.

APPEAL SEVERED FROM NO. 98-40446; COA GRANTED; VACATED AND

REMANDED.