Thames v. Wilson , 179 F. App'x 241 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-60421
Summary Calendar
DONNELL THAMES,
Petitioner-Appellant,
versus
UNKNOWN WILSON, Mississippi Department of Corrections,
Superintendant,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-898-WSu
--------------------
Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Donnell Thames, Mississippi prisoner # 61705, appeals the
district court’s dismissal, as time-barred, of his 28 U.S.C.
§ 2254 petition. Thames filed the petition in July 2003 to
challenge his 1995 jury trial conviction for possession of a
controlled substance with intent to sell, for which he is serving
a sentence of life imprisonment as a habitual offender. A
certificate of appealability was granted on the issues whether
the limitation period should have been tolled due to a state-
*
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this opinion should not be published and is not precedent except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.
No. 04-60421
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created impediment and whether the district court abused its
discretion in dismissing the petition without granting leave to
conduct discovery. See Thames v. Cockrell, No. 04-60421 (Feb.
22, 2005) (unpublished).
Thames argues that a state-created impediment prevented him
from pursuing post-conviction relief. Specifically, he contends
that libraries were closed in Mississippi prisons and that the
Mississippi Inmate Legal Assistance Program (MILAP), which was
instituted as a substitute for hardback libraries, did not
provide adequate assistance. The respondent argues that there
was no state-created impediment to Thames’s filing of a § 2254
petition.
“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.”
Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). “[A]
state’s failure to provide the materials necessary to prisoners
to challenge their convictions or confinement . . . constitutes
an ‘impediment’ for purposes of invoking § 2244(d)(1)(B).” Id.
at 439.
“[A]nalysis under § 2244(a)(1)(B) is highly fact dependent.”
Id. at 438. The district court, over Thames’s objections,
adopted the magistrate judge’s report and dismissed Thames’s
petition as time-barred without making factual findings. Because
the record is void of any findings regarding the materials
No. 04-60421
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available to Thames for challenging his conviction, we cannot
conclude that Thames was not prevented from filing his § 2254
petition by the existence of a state-created impediment.
Accordingly, we vacate the judgment of the district court and
remand for further proceedings, including the development of
facts pertinent to the disposition of Thames’s § 2254 petition.
Thames also contends that the district court erred in not
permitting him to conduct discovery. He refers to a set of
proposed interrogatories he submitted to the district court
concerning the operation of the MILAP from September 1997 to
August 1999. Decisions concerning discovery are within the sound
discretion of the district court, and such decisions will be
reversed only for an abuse of discretion. See Hill v. Johnson,
210 F.3d 481, 487 (5th Cir. 2000).
Because Thames’s conviction became final in March 1998, and
his § 2254 petition was not filed until July 2003, there is a
possibility that Thames’s § 2254 petition may be time-barred even
if he was prevented from filing the petition for some period of
time due to the existence of a state-created impediment. The
state record reflects that Thames sought state post-conviction
relief, which may entitle Thames to tolling under § 2244(d)(2),
but the state record is not sufficient to conclusively show
whether the limitations period had run. Absent more detailed
fact findings we cannot conclude that the district court abused
No. 04-60421
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its discretion in dismissing the petition without permitting the
requested discovery.
VACATED AND REMANDED.