Williams v. Johnson

No. 99-41069
-1-
* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41069
Summary Calendar
DARVEN WILLIAMS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CV-436
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January 24, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Darven Williams, Texas prisoner #588521, seeks a certificate
of appealability (COA) to appeal from the dismissal of his habeas
corpus application. Williams COA motion is GRANTED. Williams
also seeks to supplement the record; his motion to supplement is
DENIED. Williams argues that his 1998 conviction of disorderly
conduct violated the Double Jeopardy Clause because he was
convicted of the same offense in 1994 based on the same conduct;
that he received ineffective assistance of counsel regarding the

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No. 99-41069
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1998 conviction; and that his administrative release improperly
was revoked based on the 1998 conviction.
The record indicates that Williams is in custody pursuant to
the revocation of his administrative release by the Texas Board
of Pardons and Paroles and that the Board’s action was based on
the 1998 disorderly conduct conviction. A prisoner may pursue
habeas corpus relief under 28 U.S.C. § 2254 on the ground that he
is in custody pursuant to an unconstitutional action of a parole
board. Newby v. Johnson, 81 F.3d 567, 568-69 (5th Cir. 1996)
(challenging good-conduct time calculations); Story v. Collins,
920 F.2d 1247, 1251 (5th Cir. 1991)(same). The district court
should not have dismissed Williams’s habeas corpus application on
the basis that he was not in custody.
The district court dismissed Williams’s application and
denied him a COA solely on the basis that he was not in custody
for purposes of § 2254. We lack jurisdiction to consider a
prisoner’s underlying habeas contentions in a COA motion when the
district court has not considered them. Whitehead v. Johnson,
157 F.3d 384, 387-88 (5th Cir. 1998). We therefore lack
jurisdiction to consider Williams’s underlying habeas
contentions.
VACATED AND REMANDED.

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