                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 1, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60141
                         Summary Calendar



                          RONNIE JOHNSON,

                       Petitioner-Appellant,

                               versus

                            DOLAN WALLER,

                       Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                     USDC No. 3:03-CV-475-BN
                       --------------------

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).




     *
       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this opinion should not be published and is not precedent except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. 04-60141
                                      -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.
