IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10340
CLYDE WESLEY STRINGER
Petitioner-Appellant,
v.
DAVID WILLIAMS, Tarrant County Sheriff
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
November 16, 1998
Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This case presents a state prisoner who, relying on double
jeopardy and collateral estoppel grounds, seeks to enjoin his
further prosecution. We have no jurisdiction to grant relief for
any violation of state law, and we find that the prisoner’s
underlying constitutional claims have no merit. We therefore
refuse to grant a certificate of appealability, and we dismiss the
appeal.
I.
In August 1995, Clyde Stringer, on parole from a prior felony
conviction, was charged by a Texas grand jury in four separate
indictments with two counts of possession of a controlled
substance, and one count each of possession of a firearm by a felon
and aggravated robbery. On September 25, 1995, a hearing officer
determined that Stringer had violated his parole by committing the
offense of possession of a firearm by a felon and one of the
charged offenses of possession of a controlled substance. The
hearing officer, however, determined that there was insufficient
evidence to show that Stringer had committed the aggravated robbery
or the other controlled substance offense. Based on these
findings, the parole board revoked Stringer’s parole. Stringer now
seeks to prevent Texas from prosecuting him for any of the four
charged offenses.
After exhausting state habeas remedies, Stringer filed an
application, which he styled as being pursuant to 28 U.S.C. § 2241,
in federal district court, challenging the pending prosecutions.
He contended that the state was barred on double jeopardy grounds
from prosecuting him for the two offenses that the hearing officer
determined he had committed, and was barred on collateral estoppel
grounds from prosecuting him for the other two offenses. Stringer
maintained that the state had already punished him for those
offenses by revoking his parole and by failing to give him credit
towards his prior sentence for the time that he successfully spent
on parole.
On March 11, 1998, the district court, characterizing
Stringer’s habeas petition as being pursuant to 28 U.S.C. § 2254,
dismissed it. Because Stringer sought an injunction against
ongoing state criminal proceedings, the court ruled that abstention
was required under Younger v. Harris, 401 U.S. 37, 49-52 (1971).
2
After Stringer filed his notice of appeal, the district court on
March 18, 1998, construed this notice as a request for a
certificate of appealability, see Murphy v. Johnson, 110 F.3d 10,
11 (5th Cir. 1997), and denied the certificate.
II.
As a threshold matter, we must determine whether a state
prisoner whose parole has been revoked and who awaits trial on
additional state charges requires a certificate of appealability
(COA) to challenge dismissal of a habeas petition. Under 28 U.S.C.
§ 2253, a COA is needed to appeal either (1) “the final order in a
habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court” or (2) the final
order in a § 2255 proceeding.
The record here does not make clear whether Stringer is
currently being detained pursuant to the revocation of parole,
which he does not challenge here; or whether that period of
incarceration has expired or he is otherwise being held as a
pretrial detainee. Only in the latter event would “the detention
complained of arise[] out of process issued by a State court.” The
ultimate disposition of the case, however, turns out to be the same
regardless of Stringer’s status. We thus initially assume that
Stringer is being held solely as a pretrial detainee, and we will
reverse this assumption subsequently.
In Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997), we stated:
By its terms, § 2253 requires COA’s only for appeals in
habeas proceedings involving process issued by a state
court (i.e., proceedings under 28 U.S.C. § 2254) and
appeals from final orders in proceedings under § 2255.
3
Conspicuously absent from the statute is any mention of
appeals in § 2241 proceedings.
Id. We therefore must determine first, whether Stringer’s petition
is properly characterized as a § 2241 petition. We think that it
is.
Section 2254 “applies only to post-trial situations and
affords relief to a petitioner ‘in custody pursuant to the judgment
of a state court.’” Dickerson v. State of Louisiana, 816 F.2d 220,
224 (5th Cir. 1987) (quoting § 2254). Pretrial petitions are
properly brought under § 2241, “which applies to persons in custody
regardless of whether final judgment has been rendered and
regardless of the present status of the case pending against him.”
Id. (footnote omitted); see also § 2241(c)(3) (“The writ of habeas
corpus shall not extend to a prisoner unless ... [h]e is in
custody in violation of the Constitution or laws or treaties of the
United States.”). Although Stringer is “in custody pursuant to the
judgment of a state court,” i.e. the prior felony conviction for
which his parole was revoked, he is not attacking the state court
judgment. Rather, he is seeking release from the pending state
criminal proceedings against him. Therefore, we should construe
Stringer’s filing as a habeas petition with § 2241 as the
jurisdictional basis. See Dickerson, 816 F.2d at 224; Robinson v.
Wade, 686 F.2d 298, 302-03, 303 n.8 (5th Cir. 1982).
Ojo involved a federal detainee involved in deportation
proceedings, rather than a state prisoner confined by process
issued by a state court. See 106 F.3d at 682. We concluded that
a COA was not required in the § 2241 proceeding at issue there,
4
because § 2253 clearly does not encompass challenges to federal
detention under § 2241. Just as clearly, however, § 2253 does
encompass challenges to state detention under § 2241, since “the
detention complained of arises out of process issued by a State
court.” We hold that, assuming Stringer is a pretrial detainee, he
must obtain a COA.
III.
To obtain a COA, Stringer must make “a substantial showing of
the denial of a constitutional right.” § 2253(c)(2). The district
court rejected Stringer’s request for a COA, and we must consider
whether to grant a COA. See id.; see also Fed. R. App. P. 22(b)
(“If the district judge has denied the certificate, the applicant
for the writ may then request issuance of the certificate by a
circuit judge.”).
A.
The district court dismissed Stringer’s claims on the basis of
Younger abstention, perhaps viewing the claims as cognizable, if at
all, under state law. We read the petition to assert double
jeopardy and collateral estoppel as constitutional protection from
a second “trial.” We therefore do not rely on Younger abstention.
See Showery v. Samaniego, 814 F.2d 200, 201 n.5 (5th Cir. 1987)
(finding that the Younger doctrine does not apply to double
jeopardy claims); see also Nichols v. Scott, 69 F.3d 1255, 1269
(5th Cir. 1995).
B.
5
In United States v. Whitney, 649 F.2d 296 (5th Cir. Unit B
June 1981), we held that the Double Jeopardy Clause does not apply
to parole and probation revocation proceedings. We distinguished
Breed v. Jones, 421 U.S. 519 (1975), in which the Supreme Court
held that the Clause barred the prosecution of a juvenile as an
adult for conduct that had resulted already in a juvenile court
adjudication. As we explained in Whitney: “[P]arole and probation
revocation proceedings are not designed to punish a criminal
defendant for violation of a criminal law.” 649 F.2d at 298. The
holding in Whitney controls. Cf. Douglas v. United Servs.
Automobile Ass’n, 79 F.3d 1415, 1422 n.8 (5th Cir. 1996) (noting
that “Unit B” cases are binding precedent on the Fifth Circuit).
C.
In Ashe v. Swenson, 397 U.S. 436, 445 (1970), the Supreme
Court noted that the doctrine of collateral estoppel is “embodied
in the Fifth Amendment guarantee against double jeopardy.” If
Stringer’s collateral estoppel claim is simply an effort to state
a Double Jeopardy Clause claim, it fails as we explained. If it is
an effort to state an independent violation of the Fourteenth
Amendment’s Due Process Clause, it also fails. The Showery court
refused just such an attempt: “We are unpersuaded . . . by his
attempts to erect a due process basis, independent of the double
jeopardy clause, for the application of collateral estoppel.” 814
F.2d at 203.
6
Stringer may be attempting to state a claim under Texas law.
Indeed, in Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986)
(en banc), the Texas Court of Criminal Appeals held that collateral
estoppel applies to prevent prosecution of an offense that the
state failed to establish in a probation revocation hearing. Even
so, prosecution would not constitute a “violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3); cf. Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89 (1984) (identifying constitutional limitations on the power
of federal district courts to impose injunctive relief based on
state law). The state claims are for the state court.
D.
Relatedly, if Stringer is not complaining of his current
detention, but merely trying to enjoin a pending prosecution, he
cannot do so.
IV.
We refuse to issue a certificate of appealability, and we deny
injunctive relief from the pending state prosecutions.
DISMISSED.
7