IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 99-10525
                          (Summary Calendar)



MAX WALCK,

                                             Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                             Respondent-Appellee.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                               (99-CV-7)
                         --------------------
                            April 14, 2000

Before POLITZ, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant    Max   Walck,   Texas   prisoner   #   744360,

challenges the district court’s dismissal of his 28 U.S.C. § 2254

petition as time-barred.    A certificate of appealability (COA) was

granted for the issue whether the one-year limitations period under

the Antiterrorism and Effective Death Penalty Act (AEDPA) should

have been equitably tolled while Walck was being transferred

between Texas prisons on a bench warrant, during which time he

purportedly was separated from his legal materials.


     *
        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that this opinion should not be published and is not precedent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.
The district court refused to apply the equitable tolling doctrine

in Walck’s case.

     As   a   statute     of    limitations    and   not   a    bar       to   federal

jurisdiction, the AEDPA’s limitations period may be equitably

tolled “in rare and exceptional circumstances.”                Davis v. Johnson,

, 810-11 (5th Cir. 1998), cert. denied, 

(1999). For the doctrine to apply, the petitioner must demonstrate

that he was “prevented in some extraordinary way [from] asserting

his rights.”       Felder v. Johnson, 

, 171 (5th Cir. 2000).

Whether to apply the doctrine is within the discretion of the

district court, and such a decision is thus reviewed for an abuse

of discretion.        Fisher v. Johnson, 

, 713 (5th Cir.

1999).

     Walck is inconsistent with the dates he was denied access to

his legal materials; he does not state why he needed his materials

to file his federal habeas petition; and he does not indicate that

he was restrained or prevented from filing within the limitations

period.       He    has   not   sufficiently    demonstrated          a    rare   and

exceptional circumstance warranting the application of equitable

tolling in his case.            The district court did not abuse its

discretion.

     The judgment of the district court is affirmed, and Walck’s

motion to amend the record on appeal is denied.

AFFIRMED; MOTION DENIED.




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