                                                       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this opinion should not be published and is not precedent except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
                                -2-

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22, 2005) (unpublished).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
                                -3-

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
                                  -4-

its discretion in dismissing the petition without permitting the

requested discovery.

     VACATED AND REMANDED.
