IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10947
Summary Calendar
TROY DEWAYNE JOHNSON,
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 Northern District of Texas
USDC No. 4:98-CV-455-A
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September 3, 1999
Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Troy Dewayne Johnson, Texas prisoner # 658615, seeks a
certificate of appealability (“COA”) to appeal the district
court’s dismissal of his 28 U.S.C. § 2254 petition as barred by
the one-year statute of limitations in the Antiterrorism and
Effective Death Penalty Act (AEDPA). Johnson argues that he did
not receive ten days to object to the magistrate judge’s order as
provided by 28 U.S.C. § 636(b)(1)(C) because the district court
*
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that this opinion should not be published and is not precedent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. 98-10947
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summarily dismissed his complaint after receiving a report from
the magistrate judge. Johnson also contends that the limitations
period should be tolled because he had been unable to obtain a
free copy of his state court records and the prison library did
not receive a copy of the AEDPA until January 1998.
To obtain a COA, an applicant must make a substantial
showing of the denial of a constitutional right. See 28
§ 2253(c)(2). When the district court denies relief on a
procedural ground such as the statutory limitations period, the
applicant must first make a credible showing that the district
court erred in dismissing the motion. Sonnier v. Johnson, 161
F.3d 941, 943 (5th Cir. 1998).
Johnson was not notified in the magistrate’s report of the
ten-day objection period or of the possible adverse effects of
his failure to file timely objections, as required in Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)
(en banc). The district court dismissed Johnson’s petition prior
to the expiration of the ten-day period specified in 28 U.S.C.
§ 636(b)(1)(C). Accordingly, Johnson had no opportunity to file
objections to the magistrate judge’s findings.
A district court’s failure to follow the procedures set
forth in § 636(b) and Rule 72(b) may be harmless error, however.
See McGill v. Goff, 17 F.3d 729, 731 (5th Cir. 1994). The
question therefore is whether Johnson has raised any argument
which would have prevented his petition from being dismissed.
An indigent habeas petitioner "is not entitled to a free
copy of his [trial] transcript and record to search for possible
No. 98-10947
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trial defects merely because he is an indigent." Bonner v.
Henderson, 517 F.2d 135, 136 (5th Cir. 1975). Johnson’s
unsuccessful efforts to obtain his state records at no cost did
not prevent him from filing either of his two state habeas
petitions or his federal habeas petition. Johnson has therefore
failed to show that a state-created impediment prevented him
filing his habeas petition or that he is entitled to equitable
tolling on this ground.
In Fisher v. Johnson, 174 F.3d 710, 714-15 (5th Cir. 1999),
we held that a 43-day delay in receiving notice of the AEDPA’s
limitation rules did not present a rare and exceptional
circumstance that justified equitable tolling. We, however,
stated that “[i]n the right circumstances, a delay in receiving
information might call for equitable tolling - such as if the
prison did not obtain copies of AEDPA for months and months.”
Id. at 715.
Johnson has presented evidence to this court that the prison
did not receive the AEDPA until January 1998. Because the
district court summarily disposed of Johnson’s complaint, Johnson
was not afforded an opportunity to present an equitable tolling
claim in response to the magistrate judge’s sua sponte
determination that his complaint was untimely. The record
therefore does not reveal whether supplements to the statute or
other written materials advising of the changes were available to
Johnson, or whether legal assistants with knowledge of the
changes were available to aid him. See Bounds v. Smith, 430 U.S.
No. 98-10947
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817, 830-32 (1977) (recognizing various methods of providing
meaningful access to the courts).
If Johnson’s allegations are true, this lengthy delay (some
20 months) might constitute “the right circumstances” to warrant
equitable tolling. Consequently, Johnson has raised an equitable
tolling argument with respect to his notice of the AEDPA that
might have prevented his petition from being dismissed. Under
those circumstances, we cannot say with certainty that the
district court’s failure to follow the procedures set forth in
§ 636(b) was harmless error. Accordingly, COA is GRANTED with
respect to the district court’s failure to follow the procedures
set forth in § 636(b) and Johnson’s equitable tolling argument
regarding his notice of the AEDPA. The district court’s
dismissal is VACATED, and the case is REMANDED to the district
court for further proceedings.
Because we vacate and remand the case to the district court,
Johnson’s motion for appointment of counsel on appeal is DENIED
AS UNNECESSARY.
COA GRANTED; JUDGMENT VACATED AND CASE REMANDED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED AS UNNECESSARY.