                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-1118
ALLAN O. MOORE, SR.,
                                            Petitioner-Appellant,
                               v.

DEIRDRE BATTAGLIA, WARDEN,
                                            Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
                for the Central District of Illinois.
            No. 03 C 1055—Michael M. Mihm, Judge.
                        ____________
   ARGUED OCTOBER 19, 2006—DECIDED FEBRUARY 12, 2007
                        ____________


  Before RIPPLE, MANION, and ROVNER, Circuit Judges.
  MANION, Circuit Judge. Allan Moore filed a petition for
a writ of habeas corpus in federal court challenging his
conviction in Illinois state court. The district court dis-
missed the petition as time-barred. Moore appeals, argu-
ing that the deadline for filing his petition should have
been tolled because of an inadequate prison library,
which allegedly did not contain the relevant statute of
limitations. Because the factual record is insufficiently
developed, we vacate the district court’s dismissal and
remand for further proceedings.
2                                                     No. 05-1118

                                 I.
   In 1994, an Illinois jury convicted Allan Moore of three
counts of aggravated kidnaping, and he received a sentence
of thirty years in prison. On Moore’s direct appeal, the
Illinois courts affirmed the conviction and sentence. Moore
then filed his first petition for post-conviction relief in state
court, which was denied. The Illinois Supreme Court
denied Moore’s petition for leave to appeal that first
petition on December 4, 1996. Moore filed another petition,
which was similarly unsuccessful. The Illinois Supreme
Court denied the petition for leave to appeal that petition
on December 2, 1998.
  Turning to the federal courts, Moore filed his first habeas
corpus petition on December 30, 1999. Moore v. Attorney
General of Illinois, No. 99-1407 (C.D. Ill. filed Dec. 30, 1999).
That petition, however, was dismissed without prejudice
for failure to prosecute on April 21, 2000. Almost three
years later, Moore sent the district court a letter claim-
ing newly discovered information surrounding his case.
The court received the letter on February 19, 2003. After
further correspondence, the district court judge directed
the clerk to send to Moore the proper forms for filing a
petition under 28 U.S.C. § 2254. Moore mailed the com-
pleted forms on March 5, 2003, and the clerk filed the
petition on March 12, 2003.
    In his petition, Moore alleged four1 grounds for relief: (1)


1
   Moore’s original petition before the district court appears to
allege a fifth ground: “there’s no positive [i]dentification of
Petitioner on record . . . . Although [a] description was given, the
[j]udge at no time [let the record] reflect the identification.” The
                                                     (continued...)
No. 05-1118                                                        3

his trial counsel’s alleged actual conflict of interest with his
co-defendant; (2) the state court’s alleged failure to advise
Moore of the terms of mandatory supervised release; (3)
the state’s use of evidence obtained as a result of an
allegedly unlawful arrest; and (4) the denial of jury instruc-
tions on a lesser included offense. The district court
ordered Moore to demonstrate the timeliness of his peti-
tion. Moore responded by providing the Illinois Supreme
Court’s orders dated December 4, 1996 and December 2,
1998. Without any state response, the district court dis-
missed Moore’s first, third, and fourth claims with preju-
dice as time-barred on April 22, 2003. The district court
dismissed Moore’s second ground for relief, which chal-
lenged his supervised release, as frivolous and unripe.
  Moore requested that the district court reconsider its
ruling, identifying another state court post-conviction
petition that had been denied on January 31, 2002, and
stating that he was unaware of his particular legal rights
since “[t]he law library here have [sic] been misleading
me in the wrong direction.” The district court denied the
motion for reconsideration, concluding that the petition
was still untimely even considering the January 31, 2002
denial of post-conviction relief. Undeterred, Moore sought



(...continued)
district court’s orders discussed only the first four grounds, and
Moore characterizes his petition as containing only four
claims on appeal. Because Moore did not address this omission
in his opening brief or in seeking a certificate of appealability, it
is forfeited. J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1035
n.2 (7th Cir. 2005) (citing Employers Ins. of Wausau v. Browner, 52
F.3d 656, 665-66 (7th Cir. 1995)); see also Fed. R. App. P.
28(a)(9)(A); 28 U.S.C. § 2253(c)(3).
4                                                No. 05-1118

a certificate of appealability on the district court’s ruling
that his claims were time-barred. In this filing, Moore
more explicitly claimed that the library in his prison was
inadequate and impeded his pursuit of his claims. The
district court granted a certificate of appealability for the
claims it had deemed time-barred and Moore appealed.
  While on appeal, the district court requested a remand
of the case to amend its analysis. We remanded the case.
On remand, the district court then entered an amended
order denying Moore’s motion for reconsideration, con-
cluding again that Moore’s petition was time-barred. In
particular, the district court corrected some errors in the
calculation of the deadlines. The district court again
granted a certificate of appealability regarding whether
the claims were time-barred. Moore again appeals.


                             II.
   On appeal, now with the assistance of counsel, Moore
argues that the district court improperly dismissed his
petition as time-barred because he is entitled to equitable
and statutory tolling due to an inadequate prison law
library. We review a district court’s dismissal of a habeas
corpus petition de novo. Moore v. Knight, 368 F.3d 936, 938
(7th Cir. 2004) (citation omitted).
  In 1996, Congress enacted the Antiterrorism and Effec-
tive Death Penalty Act (“AEDPA”), “which imposed a
1-year statute of limitations for filing a federal habeas
corpus petition.” Pliler v. Ford, 542 U.S. 225, 230 (2004)
(citing 28 U.S.C. § 2244(d)(1)). Under the statute, “a per-
son in custody pursuant to the judgment of a State court”
must file his petition within a “1-year period of limitation.”
28 U.S.C. § 2244(d)(1). As a state prisoner, the statute
No. 05-1118                                                5

applies to Moore, but Moore concedes that his petition
was not filed within the required one-year period. The one-
year period is tolled, however, if the state creates an
impediment to filing a petition: “The limitation period
shall run from the latest of . . . the date on which the
impediment to filing an application created by State
action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from
filing by such State action.” Id. Moore also claims that
he deserves equitable tolling of the limitation period, which
is warranted if “extraordinary circumstances outside of the
petitioner’s control prevent timely filing of the habeas
petition.” Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004)
(citation omitted); see also Williams v. Sims, 390 F.3d 958,
959-64 (7th Cir. 2004).
  Regarding statutory tolling, Moore argues that the
inadequate prison library constituted a state-created
impediment to his filing a petition. This circuit previously
stated, “[a]lthough neither § 2244 nor this circuit has
defined what constitutes an ‘impediment’ for purposes
of § 2244(d)(1)(B), the plain language of the statute
makes clear that whatever constitutes an impediment
must prevent a prisoner from filing his petition.” Lloyd v.
VanNatta, 296 F.3d 630, 633 (7th Cir. 2002) (emphasis
in original). The Seventh Circuit has yet to decide wheth-
er an inadequate library is grounds for statutory tolling as
a state-created impediment. The Fifth and Ninth Cir-
cuits have addressed this issue; both have held that
inadequate law libraries may, but do not necessarily,
constitute an impediment qualifying for tolling under
section 2244(d)(1)(B). See Egerton v. Cockrell, 334 F.3d 433,
438 (5th Cir. 2003); Whalem/Hunt v. Early, 233 F.3d 1146 (9th
Cir. 2000) (en banc).
6                                                  No. 05-1118

  In Egerton, the petitioner filed his petition after the one-
year period, and the state moved to dismiss the petition.
In response, the petitioner claimed that he had inade-
quate prison library facilities that “lacked the federal
materials necessary for him to pursue habeas relief.”
Egerton, 334 F.3d at 435. The district court found no basis
for statutory or equitable tolling and dismissed the peti-
tion as untimely. The Fifth Circuit remanded the case to
develop further the record. Id. On remand, the magistrate
judge found that “there was ‘no evidence to support a
finding that [petitioner] had actual knowledge of the
[statute of limitations] prior to the expiration.’ ” Id. at 436.
In particular, the magistrate judge noted that the state
did not provide any evidence regarding whether the library
contained the statute of limitations. Id. With this enhanced
record, the Fifth Circuit confronted the question of
“whether absence of the [statute of limitations] from the
prison law library invokes” statutory tolling under 28
U.S.C. § 2244(d)(1)(B). Id. at 438. The Fifth Cir-
cuit concluded that “a state’s failure to provide the mate-
rials necessary to prisoners to challenge their convic-
tions or confinement, in this case a copy of the very stat-
ute that is being used to render [the petitioner’s] petition
time-barred, constitutes an ‘impediment’ for purposes of
invoking § 2244[(d)](1)(B).” Id. at 438-39.
  Similarly, in Whalem/Hunt, the petitioner filed his peti-
tion after the one-year period, and the state moved to
dismiss the petition. In response, the petitioner sub-
mitted a declaration “that the law library of the prison in
which he is incarcerated did not have legal materials
describing” the statute of limitations until after his year
had expired. Whalem/Hunt, 233 F.3d at 1147. The district
court determined that the petition was untimely and that
No. 05-1118                                                     7

no tolling was warranted. Id. at 1148. The Ninth Circuit
reversed, stating that “[w]e do not agree with the district
court that there are no circumstances consistent with
petitioner’s petition and declaration under which he would
be entitled to a finding of an ‘impediment’ under
§ 2244(d)(1)(B) or to equitable tolling.” Id. The Ninth
Circuit further stated that “[o]n the present record, how-
ever, we cannot go farther.” Id. The district court had not
conducted an evidentiary hearing or solicited a response
from the state regarding the contents of the prison library.
Id. Noting that the issues of whether a state-created impedi-
ment or grounds for equitable tolling existed “are highly
fact-dependent,” the court concluded that it could not
determine whether there were grounds for tolling under a
limited record. Id. Accordingly, the Ninth Circuit re-
manded for further proceedings “to develop the facts
and assess their legal significance.” Id. A concurring opin-
ion clarified that
    [w]e cannot tell, . . . on this record, precisely what the
    factual circumstances were regarding [petitioner’s]
    ability or inability to learn of the . . . one-year statute of
    limitations. Nor can we determine the connection, if
    any, between [petitioner’s] late-filing of his petition
    and any legal research difficulties affecting him while
    in prison.
Id. at 1149 (Tashima, J., concurring).
  Like the proceedings in the Ninth Circuit and the initial
proceedings in the Fifth Circuit, this case presents us
with a limited factual record, particularly because the
district court did not require the state to respond to the
petition. We cannot glean from the record whether the
prison library contained the relevant statute of limitations.
Although Moore does not unequivocally assert that the
8                                                No. 05-1118

library lacked the statute of limitations, he does assert that
there are “no lawbooks in [his] cell nor are they letting
us go to the maximum Law Library for Federal Habeas
Corpus for State Prisoner’s [sic].” Moore also claims that
the books that are available are “real old,” irrelevant to
his needs, and that the law has changed from that avail-
able in the library. The state never had an opportunity
to respond to this contention. The record thus does not
establish whether the prison library was adequate. Ac-
cordingly, just as the Fifth and Ninth Circuits proceeded,
we consider it premature to answer the question of
whether an inadequate library provides a basis for statu-
tory or equitable tolling. If, on remand, the district court
determines that the library contained a copy of the stat-
ute of limitations and the state did not prevent Moore from
accessing the statute, there would be no need to reach the
further legal question regarding tolling. We therefore
express no opinion at this time regarding whether an
inadequate prison library may provide a basis for statu-
tory or equitable tolling.


                             III.
  Because the factual record is insufficiently developed,
we VACATE the district court’s dismissal and REMAND for
further proceedings.
No. 05-1118                                           9

A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—2-12-07
