Richie v. Scott ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20140
Conference Calendar
__________________
ANTONE RICHIE,
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 Southern District of Texas
USDC No. CA-H-94-2635
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(October 25, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Texas prisoner Antone Richie seeks a certificate of probable
cause (CPC) to appeal the district court's dismissal without
prejudice of his habeas corpus petition challenging the
revocation of his parole. Richie requests that the court allow
him to appeal in forma pauperis (IFP) and that counsel be
appointed.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and 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that this opinion should not be published.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. 95-20140
-2-
Although Richie's petition was brought under 28 U.S.C.
§ 2241, the district court construed the petition as one under 28
U.S.C. § 2254 and dismissed it for failure to exhaust state
remedies. As Richie does not contest the legality of his
conviction or the validity of his initial sentence, the district
court erred by construing his petition under § 2254. Habeas
petitions challenging the revocation of the petitioner's parole
sound under § 2241. Johnson v. Scott, No. 94-40942 (5th Cir. May
19, 1995) (unpublished; copy attached); Rome v. Kyle, No. 93-5551
(5th Cir. Nov. 30, 1994) (unpublished; copy attached).
Because the district court erred by treating the petition as
one under § 2254, the appeal is not frivolous, and the motion for
IFP is GRANTED. Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.),
cert. denied, 488 U.S. 931 (1988). Richie's motion for
appointment of counsel is DENIED. See 5th Cir. Plan Under the
Criminal Justice Act, § 2; Schwander v. Blackburn, 750 F.2d 494,
502 (5th Cir. 1985).
The issuance of a CPC is unnecessary to establish appellate
jurisdiction in this case because the detention that Richie
complains of, revocation of parole, does not arise out of process
issued by a State court. 28 U.S.C. § 2253. Richie's motion for
a CPC is DENIED AS UNNECESSARY.
Although § 2241 contains no exhaustion requirement, this
court requires that a petitioner seeking relief under § 2241
first exhaust his state remedies. See § 2241(c)(3); Rome, No.
93-5551, slip op. at 5-6. The record indicates that Richie has
not exhausted remedies with regard to the revocation of his
No. 95-20140
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parole. Therefore, the district court's dismissal of the
petition for failure to exhaust is AFFIRMED. See Bickford v.
Int'l Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. 1981)
(reversal is inappropriate if ruling of district court can be
affirmed on any grounds, regardless of whether those grounds were
used by district court); see also Clark v. Williams, 693 F.2d
381, 381-82 (5th Cir. 1982) (the court may dispose of the appeal
on the merits on a motion for IFP).
Richie's motions for bail, supplementation of the record and
to expedite proceedings are DENIED.