                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    _____________

                                    No. 00-1859MN
                                    _____________

Robert Daniel Gassler,                     *
                                           *
             Appellant,                    *
                                           * On Appeal from the United
      v.                                   * States District Court
                                           * for the District
                                           * of Minnesota.
James Bruton, Warden,                      *
                                           *
             Appellee.                     *
                                      ___________

                               Submitted: May 31, 2001
                                   Filed: July 2, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
       Circuit Judges.
                         ___________

RICHARD S. ARNOLD, Circuit Judge.

       Robert D. Gassler Jr. appeals the District Court's1denial of his petition for a writ
of habeas corpus on the ground that the petition was untimely under 28 U.S.C. §
2244(d)(1). Mr. Gassler claims that the District Court erred in refusing to apply the
doctrine of equitable tolling. We disagree and affirm.



      1
        The Hon. Judge James M. Rosenbaum, United States District Judge for the
District of Minnesota.
                                            I.

       The facts are undisputed. In 1992, Mr. Gassler was convicted of first-degree
murder and two counts of second-degree murder in a Minnesota state court. He was
sentenced to a minimum of 30 years and a maximum of life in prison. A few months
later, Mr. Gassler was transferred to a federal correctional facility at Oxford,
Wisconsin, to complete an unrelated sentence. In 1993, the Minnesota Supreme Court
affirmed Mr. Gassler's conviction on direct appeal. In January 1994, he sent a letter to
the Minnesota State Public Defender's Office, his counsel on direct appeal, requesting
the transcript from his trial. In a letter dated a few days later, the Public Defender's
Office informed Mr. Gassler that the trial transcript was state-owned property and
could not be provided to him while he remained in an out-of-state correctional facility.
The letter advised him that he could purchase a copy of the trial transcript, or select
portions of the transcript which would be copied and sent to him free of cost. Mr.
Gassler was also advised that the trial transcript would be sent to him, upon request,
when he returned to a Minnesota correctional facility.

        In August of 1995, Mr. Gassler filed a petition for writ of habeas corpus in a
Minnesota state court, which was dismissed. In January 1996, he filed a 28 U.S.C. §
2254 petition for habeas corpus in the United States District Court for the District of
Colorado, which was dismissed on October 1, 1996, upon the basis of forum non
conveniens. Approximately two weeks later, Mr. Gassler was transferred back to a
Minnesota state correctional facility, at which time he requested the trial transcript from
the Minnesota State Public Defender's Office. He received the transcript on December
27, 1996. He initiated proceedings for post-conviction relief in a state court on June
6, 1997. The Minnesota Supreme Court denied post-conviction relief on April 1, 1999.
See Gassler v. State, 590 N.W.2d 769 (Minn. 1999). On August 9, 1999, Mr. Gassler
filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
District Court.




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       Before Magistrate Judge Arthur J. Boylan, the state moved for summary
dismissal of the petition as untimely under 28 U.S.C. § 2244(d)(1). In response, Mr.
Gassler argued that the time during which the state denied him access to the trial
transcript should be tolled, because without the transcript he could not properly prepare
his post-conviction relief arguments. Thus, he contends the statute of limitations did
not commence until December 27, 1996, when he received the trial transcript.

      In his Report and Recommendation, Judge Boylan held that since Mr. Gassler's
conviction had become final before the passage of the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), the one-year statute of limitations commenced on
AEDPA's effective date, April 24, 1996. Thus, in the view of the Magistrate Judge,
Mr. Gassler should have filed his petition by April 24, 1997. Judge Boylan declined
to exclude the time between April 24, 1996, and December 27, 1996, when Mr.
Gassler received the trial transcript.

      The District Court adopted Judge Boylan's Report and Recommendation and
entered judgment dismissing the petition. On appeal to this Court,2 the case was
remanded to the District Court for a determination of whether or not a Certificate of
Appealability (COA) should issue. The District Court granted a COA on the sole issue
of whether or not the petition was timely.




      2
       Mr. Gassler filed a notice of appeal which was treated as an application for a
COA. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997), cert. denied, 525 U.S. 834
(1998). The case was remanded to the District Court for consideration in light of
Tiedeman v. Benson, 122 F.3d 518 (8th Cir. 1997).

                                          -3-
                                            II.

       April 24, 1996, was the effective date of AEDPA. Petitioner's time for filing,
absent extensions or tolling of some sort, would expire on April 24, 1997. It was not
until after that date that petitioner commenced his state post-conviction proceeding.3

        Accordingly, this petition is barred unless petitioner is entitled to an extension,
so to speak, on account of the difficulty of obtaining the transcript of his trial. His
effort to obtain a transcript began in January 1994, but was thwarted at that time by the
State's policy against sending a transcript to a prisoner incarcerated out of state. After
petitioner returned to Minnesota, and against requested the transcript, it was provided
without extraordinary delay. The request was made in the middle of October, 1996,
and the transcript was received by petitioner at the end of December of that year. It
was not until five months after that that petitioner commenced proceedings for post-
conviction relief in the state courts.

      We do not think that these delays in obtaining the transcript of the trial should
have the effect of extending the limitations period. The doctrine of equitable tolling
may apply here, because the limitations period in § 2244(d)(1) is not a jurisdictional
bar. See Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), cert. denied, 519
U.S. 1083 (1997). However, equitable tolling is appropriate only under limited
conditions, for example, where "extraordinary circumstances" beyond a prisoner's
control prevent the timely filing of a petition. See id; Paige v. United States, 171 F.3d
559, 561 (8th Cir. 1999) (declining to toll limitations on account of a delay in the mail



      3
       We do not know the details of the federal habeas proceeding filed in the District
of Colorado. Petitioner does not contend that it should have anything to do with the
timeliness of the case before us. In any event, the Supreme Court has now held that the
phrase "application . . . for other collateral review" in 28 U.S.C. § 2244(d)(2) does not
include federal habeas petitions.

                                           -4-
system between prisons). Equitable tolling is also appropriate where the "conduct of
the defendant has lulled the plaintiff into inaction." Kreutzer, 231 F.3d at 463.

        Here, we understand petitioner's desire to have a transcript before filing for post-
conviction relief. Possession of a transcript, however, is not a condition precedent to
the filing of such proceedings. A petition seeking collateral relief could have been
filed, following which, if necessary for decision of the issues raised, the court could
have ordered production of the transcript. Further, petitioner could have obtained
copies of portions of the transcript free. And we are not told which particular claims
petitioner was prevented from raising by the lack of a complete transcript.

       Accordingly, we hold that the District Court did not err in dismissing this petition
as barred by the one-year statute of limitations. The judgment of that Court is affirmed.

       A true copy.

              Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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