                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                         _______________________

                               No. 00-10011

                         _______________________


                              TEDDY ROBINSON,

                                                      Petitioner-Appellant,

                                   versus

                              GARY L. JOHNSON,

                                                      Respondent-Appellee.



_______________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                          (5:98-CV-127-C)
_________________________________________________________________
                          August 14, 2001

Before DAVIS and JONES, Circuit Judges, and BARBOUR*, District
Judge.


PER CURIAM:**

            Teddy Robinson, Texas prisoner # 506648, appeals the

district court’s denial of his motion under Federal Rule of Civil

      *
            District Judge for the Southern District of Mississippi, sitting by
designation.
      **
            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opinion should not be published and is not precedent except under the limited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.
Procedure 60(b)(1).       Because we find that the district court’s

denial of Robinson’s motion was neither in obvious conflict with

any clear statutory mandate nor a fundamental misconception of the

law, we hold that the district court did not abuse its discretion

and affirm.

            The    procedural   posture       of    this      case     is    somewhat

convoluted.       In December 1988, Robinson was convicted by a Texas

jury of first degree murder and sentenced to 99 years imprisonment.

On May 14, 1998, Robinson filed a 28 U.S.C. § 2254 application for

a federal writ of habeas corpus. Robinson argued that although his

§   2254   application    was   filed       more    than      a    year     after   the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) went into

effect, it should not be treated as time-barred because, inter

alia, the prison law library’s failure to obtain a copy of AEDPA

until April 14, 1997 constituted a state-created impediment that

prevented the filing of a timely application. Robinson argued that

AEDPA’s    one-year    limitations   period        on   the       filing    of   habeas

applications should be equitably tolled in recognition of his lack

of access to AEDPA.        The district court dismissed the § 2254

application as time-barred, noting that Robinson had failed to show

circumstances sufficient to warrant equitable tolling.                       Robinson

next filed a motion for a Certificate of Appealability (“COA”) in




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the district court, which was denied.             Robinson’s motion for COA

was subsequently also denied by this court.

             Robinson’s next tactic was to invoke Federal Rule of

Civil    Procedure     60(b)   in   an   effort   to   have   the   judgment   of

dismissal against his § 2254 application set aside.1                The district

court denied Robinson’s Rule 60(b) motion and then construed

Robinson’s notice appeal as an application for COA, which it

denied.

             Finally,     this court granted a COA on the issues of

whether the prison library’s failure to obtain a copy of AEDPA

until    April    of    1997   either    warranted     equitable    tolling    or

constituted a state-created impediment within the meaning of 28

U.S.C. § 2244(d)(1)(B). See Robinson v. Johnson, No. 00-10011 (5th

Cir. Sept. 26, 2000)(unpublished).            Thus, this court must review

the district court’s denial of Robinson’s Rule 60 (b) motion.

             The denial of a Rule 60(b) motion is examined for abuse

of discretion,       such that “[i]t is not enough that the granting of

relief might have been permissible, or even warranted, denial must

have been so unwarranted as to constitute an abuse of discretion.”

Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).

     1
        Fed. R. Civ. P. 60(b) provides in relevant part:

             On motion and upon such terms as are just, the court may relieve a
             party or a party’s legal representative from a final judgment,
             order, or proceeding for the following reasons: (1) mistake,
             inadvertence, surprise, or excusable neglect; . . .


                                         3
In this circuit Rule 60(b) may be invoked “only to rectify an

obvious      error   of   law,   apparent   on    the     record.”     Hill   v.

McDermott,827 F.2d         1040, 1043 (5th Cir. 1987).               Thus, Rule

60(b)(1) “may be employed when the judgment obviously conflicts

with a clear statutory mandate or when the judicial error involves

a fundamental misconception of the law.”            Id.    As a sister circuit

has observed, the denial of a Rule 60(b) motion by the district

court will be reversed on appeal “only if we find a complete

absence of a reasonable basis and are certain that the district

court’s decision was wrong.”         Johnston v. Cigna, 14 F.3d 486, 497

(10th Cir. 1993).

              Proper invocation of Rule 60(b) therefore presents a very

high bar which Robinson does not clear.            First, Robinson’s argument

that the lack of AEDPA in the prison library warrants equitable

tolling is clearly foreclosed by this court’s decision in Felder v.

Johnson, 204 F.3d 168, 171-173 (5th Cir. 2000).             We noted that lack

of immediate access to AEDPA in a prison library is                  “not among

those ‘rare and exceptional’ conditions that warrant deviation from

both the express rules Congress has provided and the grace-period

we have already granted prisoners whose convictions were final

before AEDPA’s effective date. To hold otherwise would characterize

as   ‘rare    and    exceptional’   circumstances       that   countless   other

prisoners could claim as their own.”             Felder, 204 F.3d at 173.



                                       4
               Second, the district court’s holding that the lack of

AEDPA     in   the    prison    library   did   not   create   a   state   created

impediment within the meaning of § 2244(d)(2) is not the sort of

fundamental mischaracterization of the law requiring reversal of its

denial of Robinson’s Rule 60(b) motion.               While there is authority

from one circuit that the lack of AEDPA in a prison library may

constitute a state created impediment,2 the decisions of this court

do not support that position.                 A panel of this court recently

determined that the absence of AEDPA from a prison library was not

a state-created impediment where the petitioner was aware of the

existence of the statute but did not know its specifics.                       See

Balawajder       v.    Johnson,     No.    99-10807     (5th   Cir.    April    5,

2001)(unpublished).            This court has also repeatedly held that an

inadequate prison law library does not constitute a “rare and

exceptional circumstance” warranting equitable tolling. See Felder,

204 F.3d at 171-73; Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.

2000); Fisher v. Johnson, 174 F.3d 710, 713-14 (5th Cir. 1999).

While none of these cases directly addresses the state created-


      2
            In the case of Whalem/Hunt v. Early, a panel of the Ninth Circuit
initially determined on the facts that the petitioner’s lack of access to AEDPA
was not responsible for the untimeliness of his habeas petition and that, as
such, no state-created impediment existed. 204 F.3d 907, 909 (9th Cir. 1999).
However, the en banc Ninth Circuit subsequently reversed the panel, holding that
there are circumstances in which an inadequate prison law library can constitute
a state-created impediment and remanding the case to the district court for
further fact finding to determine if this case presented such a situation.   See
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)(en banc). We are not
aware of any other cases that have addressed the state-created impediment
argument in the context of prison libraries.

                                          5
impediment argument, it would be incongruous to hold that the

absence of AEDPA from a prison library does not justify equitable

tolling but does constitute an impediment requiring such tolling.

The district court’s construction of the law was thus reasonable and

not an abuse of its discretion.

           Because in denying Robinson’s Rule 60(b)(1) motion the

district   court did not so misconstrue the law as to constitute an

abuse of its discretion, we affirm.

           AFFIRMED.




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