* 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that this opinion should not be published and is not precedent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. 98-50947

Summary Calendar

 

MICHAEL WAYNE FRENCH,

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 Western District of Texas

USDC No. W:98-CV-165

---------------------

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. 
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

- 3 -

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.