Turner v. US Parole Commission

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 25, 2001
• Docket: 00-41194
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41194 Summary Calendar

LARRY DEAN TURNER,

Petitioner-Appellant,

versus

U.S. PAROLE COMMISSION; JOHN ASHCROFT, U.S. Attorney General,

Respondents-Appellees.

- - - - - - - - - - - - - - - - - - - - -

U.S. PAROLE COMMISSION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:99-CV-283 -------------------- July 24, 2001 Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

Larry Dean Turner, inmate # 88192-132, argues that the

district court erred when it determined that claims he made about

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-41194 -2-

the forfeiture of time served while on parole and while in prison

on a state conviction were successive under 28 U.S.C. § 2244(a).

Pursuant to 28 U.S.C. § 2244(a), a district judge is not required

to entertain a habeas application inquiring into a person’s

detention pursuant to a United States court judgment if it

appears that the legality of such detention has been determined

by a United States court on a prior application for a habeas

writ. Interpreting a prior, but substantially similar, version

of this statute, our court held that 28 U.S.C. § 2244(a) applied

to 28 U.S.C. § 2241 habeas petitions. See United States v.

Tubwell, 37 F.3d 175, 178 (5th Cir. 1994). Our court has not yet

determined, however, whether the gate-keeping provisions of 28

U.S.C. § 2244(b), which require certification by a court of

appeals before a successive application may be filed in the

district court, apply to 28 U.S.C. § 2241 petitions. See Davis

v. Fechtel, 150 F.3d 486, 490-91 (5th Cir. 1998).

Under either pre-AEDPA law or the current statute, Turner’s

challenge to the 1992 revocation of his parole is not successive

or an abuse of the writ. Turner’s appellate argument goes to the

execution of the second parole violator while the claim raised

and decided by the Tenth Circuit in Turner v. U.S. Parole

Commission, 934 F.2d 254 (10th Cir. 1992), went to the issuance

of the warrant. The Tenth Circuit did not address whether

Turner’s credit for street time and the time he was incarcerated

in state prison could be forfeited because the parole violator

warrant had not yet been executed. As Turner submits, he could

not have raised the instant claim in the petition ruled on by the No. 00-41194 -3-

Tenth Circuit because his parole revocation hearing was held

after the Tenth Circuit decided that the Commission had authority

to issue a second parole violator warrant.

The district court’s dismissal of Turner’s petition as

successive is VACATED and the case is REMANDED for proceedings on

the merits. Inasmuch as Turner does not make any appellate

argument about the 1999 parole revocation, the claims he made in

the district court are deemed waived. Brinkmann v. Dallas County

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).