Ellison v. Scott ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20585
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JESSIE ELLISON,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division,
JOHN W. KYLE, JAMES A. LYNAUGH,
S.O. WOODS, JR., DAN SMITH,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-H-93-1347
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November 2, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Jessie Ellison requests a certificate of probable cause
(CPC) to appeal the district court's dismissal of his petition
for habeas corpus. He also appeals the district court's
dismissal as frivolous of his civil rights complaint.
*
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that this opinion should not be published.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. 95-20585
-2-
Ellison's petition is more properly construed as a petition
pursuant to 28 U.S.C. § 2241 rather than § 2254; however,
construing the petition as pursuant to § 2241 has no practical
effect in this case because briefing by the respondents is not
appropriate and the district court's judgment may be affirmed
without further proceedings. See United States v. Cleto, 956
F.2d 83, 84 (5th Cir. 1992); Clark v. Williams, 693 F.2d 381,
381-82 (5th Cir. 1982)(summary disposition of an appeal).
Although § 2241 contains no explicit exhaustion requirement,
this court has required a petitioner seeking relief under § 2241
first to exhaust his state remedies. The exhaustion requirement
is satisfied when the substance of the federal habeas claim has
been fairly presented to the highest state court. Picard v.
Conner, 404 U.S. 270, 275 (1971). Ellison may challenge the
revocation of his parole by filing a habeas corpus petition in
the Court of Criminal Appeals, the highest state court for
criminal matters. See Richardson v. Procunier, 762 F.2d 429,
431-32 (5th Cir. 1985). A similar challenge may be made with
regard to the deprivation of "flat" and "good time" credits. See
Ex Parte Hatcher, 894 S.W.2d 364 (Tex. Crim. App. 1995). The
district court did not abuse its discretion by dismissing the
§ 2241 petition for failure to exhaust. See Fuller v. Rich, 11
F.3d 61, 62 (5th Cir. 1994).
Similarly, the district court did not abuse its discretion
by dismissing Ellison's civil rights claim as frivolous under 28
U.S.C. § 1915(d). See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994). Claims alleging "harm caused by actions whose
No. 95-20585
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unlawfulness would render a conviction or sentence invalid"
cannot be brought under § 1983 unless that "conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254."
Heck, 114 S. Ct. at 2372. Otherwise, such a claim for damages is
not cognizable under § 1983 and must be dismissed. Id. A claim
involving a challenge to a parole proceeding is governed by Heck.
See McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160-61
(5th Cir. 1995). Because Ellison makes no showing that the
actions he complains of have been reviewed or declared invalid by
a state tribunal authorized to make such determination, the
district court did not abuse its discretion when it dismissed the
complaint under § 1915(d).
Ellison's motion for CPC is DENIED as unnecessary. The
judgment of the district court is AFFIRMED. See Clark, 693 F.2d
382-82. Ellison's motion to affirm the district court's judgment
and order is DENIED as unnecessary.