IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20835
USDC No. 95-CV-3706
CHARLES THOMAS KUPKA,
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 Southern District of Texas
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May 29, 1997
Before KING, JOLLY and DENNIS, Circuit Judges.
BY THE COURT:
Charles Thomas Kupka’s notice of appeal is construed as a
request for a certificate of appealability (COA). See Fed.
R. App. P. 22(b). Unless a petitioner meets the “in custody”
requirement of the federal habeas corpus statutes, a district
court does not have subject-matter jurisdiction to entertain the
petition. See Maleng v. Cook, 490 U.S. 488, 490 (1989). It is
not clear whether Kupka was “in custody” for purposes of the
O R D E R
No. 96-20835
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challenged conviction. Accordingly, COA is GRANTED, the judgment
of dismissal is VACATED, and the case is REMANDED to the district
court for a determination whether the court had jurisdiction to
consider the petition.
COA GRANTED. VACATE AND REMAND.