IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40091
USDC No. 9:96-CV-158
DARNELL JOHNSON,
Petitioner-Appellant,
versus
GARY JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
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October 7, 1997
Before DUHE’, DeMOSS and DENNIS, Circuit Judges.
BY THE COURT:
Darnell Johnson, Texas prisoner #265926, requests a
certificate of appealability (COA) from the district court’s
denial of his federal habeas petition, 28 U.S.C. §§ 2241, 2254.
Johnson contends that he received ineffective assistance of
counsel during his parole revocation proceedings.
Johnson’s petition was filed on April 2, 1996, prior to the
date of enactment of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). The Supreme Court recently held in
O R D E R
No. 97-40091
- 2 -
Lindh v. Murphy, 117 S. Ct. 2059, 2067-68 (1997), that the
AEDPA’s amendments to the habeas corpus statutes, which include
the successive habeas provisions of 28 U.S.C. § 2244, apply only
to cases filed after the AEDPA’s effective date of April 24,
1996.
Accordingly, Johnson’s motion for a COA is construed as a
request for a certificate of probable cause (CPC) and CPC is
GRANTED. The case is VACATED and REMANDED to the district court
for consideration of Johnson’s petition under pre-AEDPA
standards. See Moran v. Stadler, ___ F.3d ___(5th Cir. September
8, 1997, No. 96-30892), 1997 WL 476407 at *1 (petition filed in
the district court prior to the effective date of the AEDPA is
not subject to the AEDPA’s successive habeas provisions).
Johnson’s motion for leave to proceed in forma pauperis
(IFP) in this court is GRANTED.
COA GRANTED; IFP GRANTED; VACATED and REMANDED.