IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50581
Conference Calendar
__________________
DARNELL JOHNSON,
Petitioner-Appellant,
versus
WAYNE SCOTT, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-95-CV-155
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December 19, 1995
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Darnell Johnson has filed with this court motions for a
certificate of probable cause (CPC) and to proceed in forma
pauperis (IFP) on appeal. Although Johnson filed his habeas
petition in the district court pursuant to both §§ 2241 and 2254,
his petition is more properly construed as arising under
*
Local Rule 47.5.1 provides: "The publication of
opinions that merely decide particular cases on the basis of
well-settled principles of law imposes needless expense on the
public and burdens on the legal profession." Pursuant to that
Rule, the court has determined that this opinion should not be
published.
No. 95-50581
-2-
§ 2241(c)(3) because Johnson was in custody due to revocation of
his parole by the parole board and not pursuant to a state-court
judgment. See § 2254(a). A § 2241 petition must be filed in the
district where the petitioner is incarcerated. A CPC is not
necessary in an appeal from the denial of § 2241 habeas because a
CPC is required only in an appeal from the denial of habeas
relief "where the detention complained of arises out of process
issues by a state court." 28 U.S.C. § 2253.
When Johnson filed his habeas petition, he was incarcerated
at the Eastham Unit in Lovelady, Texas, where he remains.
Lovelady is in Houston County, which is located in the Eastern
District of Texas. See 28 U.S.C. § 124(c)(7). Johnson filed his
petition in the Western District of Texas. The district court
was thus without jurisdiction to consider Johnson's petition.
Accordingly, Johnson's motion for CPC is DENIED as
unnecessary. Because the district court lacked subject-matter
jurisdiction to consider Johnson's petition, his motion for IFP
is DENIED and the appeal dismissed.
APPEAL DISMISSED.