IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50330
USDC No. W-96-CV-47
TODD W. ALTSCHUL,
Petitioner-Appellant,
versus
TEXAS BOARD OF PARDONS
& PAROLES,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
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October 21, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.
BY THE COURT:
Todd W. Altschul, Texas prisoner #586467, has filed an
application for a certificate of probable cause (CPC), an
application for a certificate of appealability (COA), and a
motion for leave to proceed in forma pauperis (IFP) to appeal the
district court’s dismissal of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254 as duplicative. Altschul argues
that he will be unlawfully restrained in the future if he must
become parole eligible before he will be released to federal
O R D E R
No. 96-50330
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authorities to serve his pending federal sentence.
A CPC requires a substantial showing of the denial of a
federal right. Barefoot v. Estelle, 463 U.S. 880, 893 (1983). A
COA may be issued only if the prisoner has made a substantial
showing of the denial of a constitutional right. § 2253(c)(2).
The district court abused its discretion in dismissing the
complaint as duplicative because Rule 2(d) of the Rules Governing
§ 2254 Cases requires separate petitions for attacks on judgments
from multiple state courts. Nevertheless, Altschul’s claim of
unlawful restraint in the future is not yet ripe. As the claim
is more hypothetical than real, it does not present a federal
court with the Article III case or controversy requisite to its
jurisdiction. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.),
cert. denied, 115 S. Ct. 189 (1994). Altschul’s requests for
CPC, COA, and IFP are GRANTED. The judgment dismissing
Altschul’s petition contains no language advising whether the
dismissal is with or without prejudice. The judgment of the
district court is MODIFIED to be explicitly WITHOUT PREJUDICE,
and AFFIRMED as MODIFIED.