IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50947
Summary Calendar
MICHAEL WAYNE FRENCH,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W:98-CV-165
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April 19, 1999
Before EMILIO M. GARZA, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael Wayne French, Texas prisoner # 439300, requests a
certificate of appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 petition for habeas corpus
relief as untimely. He also seeks leave to proceed in forma
pauperis.
*
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that this opinion should not be published and is not precedent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. 98-50947
- 2 -
French argues that he received ineffective assistance of
counsel at trial and that the trial court erred in admitting
certain evidence. He also asserts that he is actually innocent
of the crime for which he was convicted. He contends that his
§ 2254 petition was timely filed, that the district court erred
in interpreting 28 U.S.C. § 2244(d)(1)(D) to bar his claims, that
he did not discover the factual basis of his claims until April
21, 1997, and that the state impeded his ability to file his
petition by providing inadequate access to legal materials. He
argues that application of the limitations period in § 2244(d) to
bar a first federal habeas petition violates the Suspension
Clause, U.S. CONST. art. I, § 9, cl. 2.
Although we agree with the district court that French’s
petition was untimely under § 2244(d) and, therefore, deny a COA
on that issue, this did not relieve the district court of its
obligation to examine French’s argument that this provision
violates the Suspension Clause. French first raised his
Suspension Clause arguments in the objections he filed to the
magistrate judge’s Report and Recommendation (R & R) which
recommended dismissing his petition as time barred. An issue
raised for the first time in an objection to a magistrate judge’s
R & R may be construed as a motion to amend the complaint. See
United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996). French
was entitled to amend his § 2254 pleading once as of right
because the respondent only moved to dismiss the § 2254
application and had not yet filed a responsive pleading. FED. R.
CIV. P. 15(a); see Barksdale v. King, 699 F.2d 744, 746-47 (5th
No. 98-50947
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Cir. 1983); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir.
1979). Therefore, the Suspension Clause claim should be treated
as an amendment to French’s § 2254 petition, and the merits of
this claim should be addressed. See Murphy v. Johnson, 110 F.3d
10, 11 (5th Cir. 1997).
A COA is GRANTED only as to French’s Suspension Clause
claim, the district court’s order dismissing French’s § 2254
petition is VACATED, and this case is REMANDED to the district
court for consideration of the merits of the Suspension Clause
claim. See Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir.
1998); Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir.
1998).
French has met the requirements for proceeding in forma
pauperis. See Carson v. Polley, 689 F.2d 562, 568 (5th Cir.
1982). Therefore, his request to proceed in forma pauperis is
also GRANTED.
MOTIONS GRANTED, CASE VACATED and REMANDED.