IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41194
Summary Calendar
LARRY DEAN TURNER,
Petitioner-Appellant,
versus
U.S. PAROLE COMMISSION; JOHN ASHCROFT,
U.S. Attorney General,
Respondents-Appellees.
- - - - - - - - - - - - - - - - - - - - -
LARRY DEAN TURNER,
Petitioner-Appellant,
versus
U.S. PAROLE COMMISSION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:99-CV-283
--------------------
July 24, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Larry Dean Turner, inmate # 88192-132, argues that the
district court erred when it determined that claims he made about
*
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that this opinion should not be published and is not precedent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. 00-41194
-2-
the forfeiture of time served while on parole and while in prison
on a state conviction were successive under 28 U.S.C. § 2244(a).
Pursuant to 28 U.S.C. § 2244(a), a district judge is not required
to entertain a habeas application inquiring into a person’s
detention pursuant to a United States court judgment if it
appears that the legality of such detention has been determined
by a United States court on a prior application for a habeas
writ. Interpreting a prior, but substantially similar, version
of this statute, our court held that 28 U.S.C. § 2244(a) applied
to 28 U.S.C. § 2241 habeas petitions. See United States v.
Tubwell, 37 F.3d 175, 178 (5th Cir. 1994). Our court has not yet
determined, however, whether the gate-keeping provisions of 28
U.S.C. § 2244(b), which require certification by a court of
appeals before a successive application may be filed in the
district court, apply to 28 U.S.C. § 2241 petitions. See Davis
v. Fechtel, 150 F.3d 486, 490-91 (5th Cir. 1998).
Under either pre-AEDPA law or the current statute, Turner’s
challenge to the 1992 revocation of his parole is not successive
or an abuse of the writ. Turner’s appellate argument goes to the
execution of the second parole violator while the claim raised
and decided by the Tenth Circuit in Turner v. U.S. Parole
Commission, 934 F.2d 254 (10th Cir. 1992), went to the issuance
of the warrant. The Tenth Circuit did not address whether
Turner’s credit for street time and the time he was incarcerated
in state prison could be forfeited because the parole violator
warrant had not yet been executed. As Turner submits, he could
not have raised the instant claim in the petition ruled on by the
No. 00-41194
-3-
Tenth Circuit because his parole revocation hearing was held
after the Tenth Circuit decided that the Commission had authority
to issue a second parole violator warrant.
The district court’s dismissal of Turner’s petition as
successive is VACATED and the case is REMANDED for proceedings on
the merits. Inasmuch as Turner does not make any appellate
argument about the 1999 parole revocation, the claims he made in
the district court are deemed waived. Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).