IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40786
Conference Calendar
JAMES WILLIE DUKE, III,
Petitioner-Appellant,
versus
UNKNOWN PERSON CHANDLER, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CV-280
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February 16, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
James Willie Duke, III, federal prisoner # 24193-077,
appeals the district court’s denial of his habeas petition that
invoked 28 U.S.C. § 2241. He also requests a certificate of
appelability (COA) for claims arising under 28 U.S.C. § 2255. To
obtain a COA, Duke must make a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). When
challenging a dismissal on procedural grounds, such as the
dismissal for lack of jurisdiction presented here, Duke must make
*
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that this opinion should not be published and is not precedent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. 99-40786
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a credible showing that the district court erred when it
dismissed his claim. See Whitehead v. Johnson, 157 F.3d 384, 386
(5th Cir. 1998).
Duke argues the following: (1) the district court erred when
it dismissed issues arising under § 2255 that related to
sentencing; and (2) the indictment in his underlying criminal
trial was insufficient. Duke also filed a motion to supplement
the record and a motion for appointment of counsel. These
motions are DENIED.
To the extent that Duke has made a § 2241 claim relating to
credit for time served in state prison, the judgment of the
district court is AFFIRMED because Duke has failed to argue the
issue on appeal. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Duke also has failed
to make a credible showing that the district court erred when it
dismissed his § 2255 claims relating to sentencing. See
Whitehead, 157 F.3d at 386. This court will not consider the
issue whether the indictment was sufficient because it was raised
for the first time in Duke’s request for COA. See id. at 388.
Accordingly, Duke’s request for COA is DENIED.
The portion of the judgment relating to § 2241 is AFFIRMED.
COA is DENIED on all other issues. All other motions are DENIED.