                    UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                         ___________________________

                                 No. 98-50356
                         ___________________________

                          UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,
                                    VERSUS

                             RENE GARZA BOTELLO,

                                                      Defendant-Appellant.

        ___________________________________________________

            Appeal from the United States District Court
                  for the Western District of Texas
                            (SA-92-CR-207)
        ___________________________________________________

                             September 24, 1999

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Rene Garza Botello appeals the district

court’s dismissal of his 28 U.S.C. § 2255 motion as time-barred

under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).

Botello contends that the district court abused its discretion in

three respects: 1. by acting without jurisdiction in reversing its

prior interlocutory order granting Botello’s motion to file a late

§ 2255 motion; 2.        by allowing the government to relitigate the

issue   of     whether     there   were   “extraordinary    circumstances”

sufficient to toll the one year period of limitation in



 *
  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opinion should not be published and is not precedent except under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.
§   2244(d)(1)   of   the   AEDPA;   and,   3.      in   finding   that   the

“extraordinary circumstances” test under the AEDPA was not met and

by dismissing Botello’s § 2255 motion as time-barred.                For the

reasons that follow, we vacate the order of the district court and

remand   for   consideration   of    whether     sufficient   extraordinary

circumstances occurred after the adoption of the AEDPA to warrant

equitable tolling of the one year period of limitation.

                                     I.

       Botello was convicted by a federal jury in March 1993 of
conspiring to possess cocaine with intent to distribute,

possessing cocaine with intent to distribute, and using a person

under 18 years of age to avoid detection and apprehension.             The

district court sentenced Botello to serve concurrent 115-month

terms of imprisonment on all three counts, plus concurrent

supervised release terms and fines.         Botello appealed the

convictions, which this court affirmed in an unpublished opinion.

       On April 9, 1997, as the one year deadline under the AEDPA

for filing a 28 U.S.C. § 2255 motion approached, Botello filed a
motion for enlargement of time, pursuant to Fed. R. Crim. P. 45

(b).    As grounds, Botello argued that he was now pro se because

his lawyer had committed suicide, that he had been moved from one

prison to another, and that he had been subject to administrative

segregation, preventing him from completing his § 2255 motion.

The district court denied the request in April 1997, incorrectly

concluding that the one year statute of limitations under the

AEDPA did not apply to § 2255 motions.           Botello appealed.

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     In July 1997, Botello sought leave to file a late § 2255

motion, asserting “extraordinary circumstances” to justify

tolling the limitations period under the AEDPA.      These

circumstances included the suicide of his attorney, inability to

obtain his deceased attorney’s work product, and the removal of

legal papers from his custody by prison officials.      The district

court granted the motion, finding that “the request is well

taken” without further explanation.      Botello then voluntarily

dismissed his appeal of the denial of his motion for enlargement

of time.

     Botello’s newly retained counsel filed a § 2255 motion, and

the district court ordered the Government to file a response.       In

its response, the Government argued that Botello’s motion was

time-barred under the AEDPA.     In April 1998, the district court

dismissed the motion as time-barred.      The district court granted

a Certificate of Appealability, and this appeal followed.

                                  II.

                                  A.

     Botello first argues that the district court abused its

discretion in acting without jurisdiction to reverse its

interlocutory order granting Botello’s motion to file a late s.

2255 motion.    He contends that the interlocutory order was not

reviewable.    We disagree.   So long as a district court has

jurisdiction over a case, it retains power to reconsider,

rescind, or modify an interlocutory order.      Melancon v. Texaco,

659 F.2d 551, 553 (5th Cir. 1981).      Thus, the district court did


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not err in asserting jurisdiction to modify an interlocutory

order.

                                 B.

     Botello next argues that the district court erred in

allowing the Government to relitigate the issue of whether there

were “extraordinary circumstances” sufficient to toll the one

year period of limitation in § 2244(d)(1) of the AEDPA.

Specifically, he argues that the Government’s failure to oppose

Botello’s July 1997 motion to file a late § 2255 motion based on

“extraordinary circumstances” bars it from relitigating the issue

under the doctrine of collateral estoppel.

     Even if the issue of “extraordinary circumstances” was fully

and fairly litigated by the district court, the district court’s

order granting Botello leave to file a late § 2255 motion was an

interlocutory order.    Such a non-final order is unreviewable and

is also subject to modification by the district court.    As such,

collateral estoppel cannot apply to bar relitigation of the issue

decided in such an order.   Thus, the district court did not err



in allowing the Government to relitigate the “extraordinary

circumstances” issue.

                                 C.

     Finally, Botello argues that the district court abused its

discretion in finding that the “extraordinary circumstances” test

was not met and by dismissing Botello’s § 2255 motion as time-

barred.   In Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998),


                                  4
this court held that the one-year period of limitation in §

2244(d)(1) of the AEDPA is subject to equitable tolling “in rare

and exceptional circumstances.”

     The district court, in finding that no “extraordinary

circumstances” existed in this case, focused almost exclusively

on the opportunities available to Botello before the enactment of

the AEDPA. It noted that Botello did not attempt to prepare and

file his § 2255 motion until after the district court denied his

motion for a new trial, more than a year after this court

affirmed his conviction.   Moreover, it found that Botello

retained his attorney in January 1994, and the attorney did not

commit suicide until June 1996, during which time there was ample

opportunity to prepare the § 2255 motion.

     We agree with the district court that Botello had ample

opportunity before the enactment of the AEDPA to prepare and file

a § 2255 motion.   But Botello was under no serious time

constraints before AEDPA’s adoption.   Therefore, in deciding

whether “extraordinary circumstances” exist that are sufficient

to toll the one year limitations period, we must consider

circumstances that occured after enactment of the AEDPA.

     Botello alleged facts that - if accepted by the district

court - established “extraordinary circumstances.”   His attorney

committed suicide almost immediately after the AEDPA came into

effect.   Also, Botello could not obtain access to his attorney’s

work product, and he often lacked access to his own legal

materials.


                                  5
     We must therefore remand this case to the district court to

consider the circumstances Botello relies upon that occurred

after the enactment of the AEDPA and determine which of these

facts it accepts as true and whether these facts are sufficient

to toll the one year limitations period for filing a § 2255

motion.

                              III.

     For the reasons stated above, we VACATE the district court’s

dismissal of Botello’s § 2255 motion and REMAND for consideration

of whether sufficient extraordinary circumstances occurring after

the enactment of the AEDPA exist to toll the one year period of

limitations to file a § 2255 motion. If the district court

answers this question in the affirmative it should then consider

the merits of Botello’s petition.

     Vacated and remanded.




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