Wickware v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 15, 1995
• Docket: 95-20091
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-20091 Summary Calendar __________________

CLEMMIE RAY WICKWARE,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

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

Appeal from the United States District Court for the Southern District of Texas USDC No. CA-H-93-1186

---------------------- (October 4, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Clemmie Ray Wickware has filed a motion for leave to file an

out-of-time brief in support of his motion for a certificate of

probable cause (CPC). The issuance of a CPC is required to take

an appeal from a final order in a habeas corpus proceeding only

"where the detention complained of arises out of process issued

by a State court." See 28 U.S.C. § 2253. The issuance of a CPC

* 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 Pursuant to that Rule, the court has determined that this opinion should not be published.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. 95-20091 -2-

is not necessary to provide appellate jurisdiction because

Wickware's complained of detention does not arise out of process

issued by a State court. Id. Thus, Wickware's motions for leave

to file an out-of-time brief and for a CPC are DENIED as

unnecessary.

Wickware's petition must be construed as seeking relief

under 28 U.S.C. § 2241 because he is contesting the manner in

which his sentence is being executed by the Texas Parole Board.

See Story v. Collins, 920 F.2d 1247, 1250 (5th Cir. 1991)

(jurisdiction over state prisoner's good conduct claim is based

on § 2241 rather than § 2254). Wickware has not shown that he is

entitled to § 2241 relief inasmuch as he has received the

presentence credits to which he argues he is entitled.

This court previously affirmed the dismissal of Wickware's

suit filed pursuant to 42 U.S.C. § 1983 against prison officials

for an alleged conspiracy to miscalculate time served. Wickware

v. Stice, No. 94-40480 (5th Cir. Oct. 12, 1994) (unpublished;

copy attached). The court noted that "the Texas Court of

Criminal Appeals responded to Wickware's post-conviction writ of

habeas corpus by granting relief and ordering the prison system

to grant Wickware additional time credit." Id. at op. p. 2.

Given that Wickware has pursued his quest for presentence

credits despite the relief he received from the Texas Court of

Criminal Appeals and this court's recognition of the same, the

instant petition is frivolous. Wickware is hereby warned that

the filing of frivolous appeals in the future will result in

sanctions, monetary or otherwise. See, e.g., Smith v. McCleod, No. 95-20091 -3-

946 F.2d 417, 418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d

68, 69 (5th Cir. 1991).

The judgment of the district court is AFFIRMED.