Newby v. Johnson

United States Court of Appeals,

Fifth Circuit.

No. 95-50364.

Billy NEWBY, Petitioner-Appellant,

v.

Gary L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

April 29, 1996.

Appeal from the United States District Court for the Western
District of Texas.

Before JOLLY, JONES and BENAVIDES, Circuit Judges.

PER CURIAM:

The appellant, Billy Newby, appeals from the order of the

district court dismissing as frivolous his petition for writ of

habeas corpus. The only worthy issue in this appeal is whether a

certificate of probable cause ("CPC") is required under 28 U.S.C.

§ 2253 when the petitioner seeks relief from an order of the state

pardon and parole board and not directly from a state court

judgment of conviction. Construing Newby's notice of appeal as a

request for CPC, see Fed.R.App.P. 22(b), we deny the request. We

therefore dismiss this appeal for lack of jurisdiction.

I

The appellant, Billy Newby, was convicted in Texas state court

of burglary and sentenced to a 15-year term. Newby was released on

parole. His parole was subsequently revoked. His certificate of

parole provided that in the event of revocation, all time served on

parole would be forfeited.

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 After exhausting his state remedies, Newby, pro se, filed this

federal habeas action under 28 U.S.C. § 2254. He contends that the

Texas Department of Criminal Justice and the Board of Pardons and

Parole illegally forfeited, as time served, his "street time served

on parole" and that his due process rights were violated for

failure to warn him of the potential forfeiture. The state moved

for summary judgment. A magistrate judge recommended that the

district court dismiss Newby's petition as frivolous. Newby filed

objections, which the district court struck for failure to provide

duplicate copies and acknowledgement of service. After a de novo

review of the magistrate judge's report, the district court granted

the state's motion for summary judgment and dismissed Newby's

petition as frivolous. The district court did not grant CPC.

Newby appeals, contending that the district court erred

because: (1) the "street time" he served should be credited; (2)

the court abused its discretion in striking the objections of a pro

se litigant; and (3) the court denied him an evidentiary hearing.

II

The issuance of CPC is required to take an appeal from a

final order in a habeas corpus proceeding "where the detention

complained of arises out of process issued by a State court, unless

the justice or judge who rendered the order or a circuit justice or

judge issues a certificate of probable cause." 28 U.S.C. § 2253

(emphasis added). Newby's complaint regarding credit for "street

time served on parole," although directly arising from an order of

the pardon and parole board, nevertheless also is one arising out

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of process issued by a state court. See Story v. Collins, 920 F.2d

1247, 1251 (5th Cir.1991) (stating that a petitioner's good conduct

time claim "attacks the conditions of his restraint under his

judgment of conviction" and appropriately is brought under 28

U.S.C. § 2254); Sheppard v. State of Louisiana Bd. of Parole, 873

F.2d 761, 761 (5th Cir.1989) (granting CPC in petitioner's

challenge to parole supervision fees that petitioner failed to pay,

leading to the revocation of his parole); Mason v. Askew, 484 F.2d

642, 643 (5th Cir.1973) (granting CPC in parole revocation

challenge); Welch v. Texas Bd. of Parole & Pardon, 460 F.2d 298,

298 (5th Cir.1972) (dismissing challenge to state detainer for lack

of CPC).1

We therefore have no jurisdiction to address the merits of

Newby's appeal from the district court's denial of habeas relief

unless we grant CPC. Drew v. Scott, 28 F.3d 460 (5th Cir.1994);

Black v. Collins, 962 F.2d 394, 398 (5th Cir.), cert. denied, 504

U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). Consequently, we

construe Newby's notice of appeal as a request for issuance of CPC.

See Fed.R.App.P. 22(b).

To obtain CPC, Newby must make a substantial showing that he

has been denied a federal right. Barefoot v. Estelle, 463 U.S.

880, 893, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090 (1983). To make

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To the extent that our unpublished per curiam decisions in
Rome v. Kyle, No. 93-5551, 42 F.3d 640 (5th Cir. Nov. 30, 1994) and
Delvin Johnson v. Scott, No. 94-40942, 56 F.3d 1385 (5th Cir. May
19, 1995) may suggest that a CPC is not required when attacking the
decision of the parole and pardons board, they depart from Story
and consequently are not controlling. See United States v. Miro,
29 F.3d 194, 199 n. 4 (5th Cir.1994).

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such a showing, Newby must "demonstrate that the issues [he raises]

are subject to debate among jurists of reason; that a court could

resolve the issues in a different manner; or that the questions

are worthy of encouragement to proceed further." Byrne v. Butler,

845 F.2d 501, 505 (5th Cir.1988) (citing Barefoot, 463 U.S. at 893

n. 4, 103 S.Ct. at 3394 n. 4).

In his petition for writ of habeas corpus, Newby alleges two

related federal constitutional deprivations. First, he alleges

that his loss of credit for "street time served on parole" prior to

the revocation of his parole resulted in a federal constitutional

violation of due process of law. Second, Newby asserts that the

failure to warn him that parole revocation may trigger forfeiture

of his credit for "street time" constituted a violation of his due

process rights.

We find these claims to be without merit. First, Newby

concedes that the denial of credit for street time did not

constitute an error under Texas law. Additionally, Newby fails to

cite any authority to support his argument that he has suffered

some sort of federal due process violation. In a similar case, in

fact, this Court has concluded that there is not a statutory right

to credit on a federal sentence for time spent in custody pursuant

to a related state charge. See United States v. Walker, 710 F.2d

1062, 1070-71 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104

S.Ct. 995, 79 L.Ed.2d 229 (1984). Second, without deciding whether

such a failure may impinge a constitutional right, the record

demonstrates that Newby did indeed receive the notice to which he

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claims an entitlement.

Given the lack of both legal authority and factual support

for his assertions of federal constitutional deprivations, Newby

has failed to make a "substantial showing of the denial of a

federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct.

3383, 3394, 77 L.Ed.2d 1090 (1983). Accordingly, his application

for CPC must be, and is hereby, DENIED. Lacking jurisdiction over

this appeal, it is hereby

DISMISSED.

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