* 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that this opinion should not be published and is not precedent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.

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.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:98-CV-455-A

- - - - - - - - - -

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 
No. 98-10947

-2-

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.