                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT




                                No. 98-11285



BRIAN WILLIAMS BUCHANAN,

                                          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

                          ---------------------
                               June 3, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges:

PER CURIAM:*

      Brian Buchanan requests a certificate of appealability

(“COA”) to appeal the dismissal of his 28 U.S.C. § 2254 federal

habeas petition as barred by the one-year statute of limitations

in 28 U.S.C. § 2244(d).       Buchanan contends that the district

court erred in dismissing his § 2254 petition as time-barred

under § 2244(d).      He argues that the limitations period should




      *
        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should not be published and is not precedent except under the limited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.
have been equitably tolled until he received notice of the denial




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of his state habeas application and for an additional 14 days

while he was preparing his federal habeas petition for filing.

He also avers that application of the limitations period in

§ 2244(d) to bar his first federal habeas petition violates the

Suspension Clause, U.S. CONST. art. I, § 9, cl. 2.

     Although we agree with the district court that Buchanan’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 the argument that § 2244(d) violates the

Suspension Clause.   Buchanan first raised his Suspension Clause

arguments in his response to the respondent’s motion to dismiss

his § 2254 petition as time-barred.   The district court should

have construed his response as a motion to amend his § 2254

petition.   See United States v. Riascos, 76 F.3d 93, 94 (5th Cir.

1996)(holding that an issue raised for the first time in an

objection to a magistrate judge’s report may be construed as a

motion to amend the complaint).   Buchanan was entitled to amend

his § 2254 pleading once as of right, because the state only

moved to dismiss the § 2254 application and had not yet filed a

responsive pleading.   See FED. R. CIV. P. 15(a); Barksdale v.

King, 699 F.2d 744, 746-47 (5th Cir. 1983).   Therefore, the

Suspension Clause claim should be treated as an amendment to

Buchanan’s § 2254 petition, and the merits of this claim should

be addressed.   See Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.

1997).




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                          No. 98-11285
                              - 4 -

     A COA is GRANTED only as to Buchanan’s Suspension Clause

claim, the order dismissing Buchanan’s § 2254 petition is

VACATED, and this case is REMANDED 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).

     COA MOTION GRANTED; CASE VACATED and REMANDED.




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