Johnson, et al v. Waller, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 1, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60141
Summary Calendar
RONNIE JOHNSON,
Petitioner-Appellant,
versus
DOLAN WALLER,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-475-BN
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ronnie Johnson, Mississippi prisoner # R5181, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 petition as
time-barred. See 28 U.S.C. § 2244(d). He argues that he is
entitled to statutory tolling under 28 U.S.C. § 2244(d)(1)(B)
and/or equitable tolling. See Egerton v. Cockrell, 334 F.3d 433
(5th Cir. 2003); Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.
1999).

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No. 04-60141
-2-
The Inmate Request Forms attached to Johnson’s objections to
the magistrate judge’s report and recommendation indicate that
Johnson was diligently attempting to file or to determine how to
file a federal habeas petition. Johnson’s diligence puts him
within the purview of Egerton v. Cockrell, 334 F.3d 433 (5th Cir.
2003), a case decided within days of the report and recommendation.
The emphasis that Egerton placed on a petitioner’s diligence was
not present in Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000), on
which the district court apparently relied, or in Fisher v.
Johnson, 174 F.3d 710, 715 (5th Cir. 1999), another instructive
case. See Egerton, 334 F.3d at 435. Given the close proximity of
the issuance of Egerton to the issuance of the report and
recommendation, it appears that the district court was unaware of
the consideration to be given Johnson’s diligence and his lack of
meaningful access to a law library, and thereby abused its
discretion in dismissing Johnson’s petition as time-barred. See
Fisher, 174 F.3d at 713.
Accordingly, the district court’s judgment is VACATED, and
this case is REMANDED for further proceedings consistent with this
opinion. Given that both parties have attempted to introduce for
the first time in this court evidence that was not before the
district court, the district court may find it appropriate to
conduct a hearing on factual issues relevant to the timeliness of
Johnson’s § 2254 petition.
VACATED AND REMANDED.

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