Beck v. Johnson

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40581

JAMES A. BECK,

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 Southern District of Texas
(G-97-CV-388)
December 1, 1998
Before DAVIS, DUHÉ and PARKER, Circuit Judges:
PER CURIAM:*
James A. Beck, Texas Prisoner #282493, petitions this court
for a Certificate of appealability. We grant the petition on the
issue of exhaustion only.
Beck has made a credible showing that the district court erred
in dismissing his application for failure to exhaust. See Murphy

*
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opinion should not be published and is not precedent except under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.

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v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). Further, the
dismissal with prejudice was erroneous. See McGrew v. Texas Bd. Of
Pardons & Paroles, 47 F.3d 158, 161 (5th Cir. 1995)(holding that
dismissal of a habeas application for failure to exhaust should be
without prejudice).
The district court’s holding that Beck did not raise a federal
question because he does not have a liberty interest in release on
parole misses the mark. It appears that Beck is making a claim of
liberty interest in mandatory release under Texas law. See Madison
v. Parker, 104 F.3d 765 (5th Cir. 1997).
We therefore vacate the district court’s order of dismissal
and remand this case so that the respondent can be served and the
district court can consider the merits of Beck’s habeas corpus
petition.
PETITION FOR COA GRANTED. JUDGMENT VACATED AND CASE REMANDED.

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