IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10366
Summary Calendar
LINZY E. LINCOLN,
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 Northern District of Texas
USDC No. 3:98-CV-243
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October 20, 1998
Before JOLLY, SMITH and WIENER, Circuit Judges.
PER CURIAM:*
Linzy E. Lincoln, Texas prisoner no. # 265570, requests a
COA to appeal the district court’s denial of his petition for
habeas corpus for failure to obtain permission from this court to
file a successive petition. Lincoln argues that (1) the trial
court “breached it[s] plea bargain agreement,” (2) the state
breached the plea agreement, (3) the trial court lost
jurisdiction when it amended the indictment, (4) the trial court
should have quashed the indictment, (5) the jury improperly
*
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that this opinion should not be published and is not precedent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.
No. 98-10366
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considered parole laws, (6) Lincoln was denied a fair trial
because the jury foreman admitted to having been a robbery
victim, (7) the state improperly informed the jury of three prior
robberies, (8) Lincoln was improperly denied a good time credit,
(9) Lincoln was denied effective assistance of counsel for five
separately enumerated reasons.
The district court denied Lincoln’s petition because it was
successive and Lincoln had failed to receive permission from this
court to file it pursuant to 28 U.S.C. § 2244(b)(3)(A). After
the district court’s order dismissing the instant case, this
court denied Lincoln’s request to file a successive petition to
assert errors which allegedly occurred during his trial. In re
Lincoln, No. 98-00137 (5th Cir. Apr. 15, 1998). This court,
however, denied as unnecessary Lincoln’s request that he be
allowed to file a petition concerning calculation and/or denial
of his parole. Id.; see In re Cain, 137 F.3d 234, 235 (5th Cir.
1998) (challenge to disciplinary proceedings that became final
subsequent to a prior habeas petition is not "second or
successive" petition).
Because Lincoln did not need permission to file his petition
regarding the issue of calculation of his parole, the district
court erred in dismissing the petition as it related to that
issue. See Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997)
Lincoln, however, has failed to make a credible showing that the
district court erred in dismissing his other habeas claims.
COA is DENIED as to all issues involving allegations of
errors occurring at Lincoln’s trial. COA is GRANTED as to
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Lincoln’s arguments regarding parole and good time credit
calculation, and the district court’s decision regarding
Lincoln’s parole claim is VACATED AND REMANDED for consideration
of this claim on the merits.
COA GRANTED IN PART AND DENIED IN PART; PAROLE CLAIMS
VACATED AND REMANDED.