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United States Court of Appeals,
Fifth Circuit.
No. 95-50364.
Billy NEWBY, Petitioner-Appellant,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
April 29, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before JOLLY, JONES and BENAVIDES, Circuit Judges.
PER CURIAM:
The appellant, Billy Newby, appeals from the order of the
district court dismissing as frivolous his petition for writ of
habeas corpus. The only worthy issue in this appeal is whether a
certificate of probable cause ("CPC") is required under 28 U.S.C.
§ 2253 when the petitioner seeks relief from an order of the state
pardon and parole board and not directly from a state court
judgment of conviction. Construing Newby's notice of appeal as a
request for CPC, see Fed.R.App.P. 22(b), we deny the request. We
therefore dismiss this appeal for lack of jurisdiction.
I
The appellant, Billy Newby, was convicted in Texas state court
of burglary and sentenced to a 15-year term. Newby was released on
parole. His parole was subsequently revoked. His certificate of
parole provided that in the event of revocation, all time served on
parole would be forfeited.
1

After exhausting his state remedies, Newby, pro se, filed this
federal habeas action under 28 U.S.C. § 2254. He contends that the
Texas Department of Criminal Justice and the Board of Pardons and
Parole illegally forfeited, as time served, his "street time served
on parole" and that his due process rights were violated for
failure to warn him of the potential forfeiture. The state moved
for summary judgment. A magistrate judge recommended that the
district court dismiss Newby's petition as frivolous. Newby filed
objections, which the district court struck for failure to provide
duplicate copies and acknowledgement of service. After a de novo
review of the magistrate judge's report, the district court granted
the state's motion for summary judgment and dismissed Newby's
petition as frivolous. The district court did not grant CPC.
Newby appeals, contending that the district court erred
because: (1) the "street time" he served should be credited; (2)
the court abused its discretion in striking the objections of a pro
se litigant; and (3) the court denied him an evidentiary hearing.
II
The issuance of CPC is required to take an appeal from a
final order in a habeas corpus proceeding "where the detention
complained of arises out of process issued by a State court, unless
the justice or judge who rendered the order or a circuit justice or
judge issues a certificate of probable cause." 28 U.S.C. § 2253
(emphasis added). Newby's complaint regarding credit for "street
time served on parole," although directly arising from an order of
the pardon and parole board, nevertheless also is one arising out
2

of process issued by a state court. See Story v. Collins, 920 F.2d
1247, 1251 (5th Cir.1991) (stating that a petitioner's good conduct
time claim "attacks the conditions of his restraint under his
judgment of conviction" and appropriately is brought under 28
U.S.C. § 2254); Sheppard v. State of Louisiana Bd. of Parole, 873
F.2d 761, 761 (5th Cir.1989) (granting CPC in petitioner's
challenge to parole supervision fees that petitioner failed to pay,
leading to the revocation of his parole); Mason v. Askew, 484 F.2d
642, 643 (5th Cir.1973) (granting CPC in parole revocation
challenge); Welch v. Texas Bd. of Parole & Pardon, 460 F.2d 298,
298 (5th Cir.1972) (dismissing challenge to state detainer for lack
of CPC).1
We therefore have no jurisdiction to address the merits of
Newby's appeal from the district court's denial of habeas relief
unless we grant CPC. Drew v. Scott, 28 F.3d 460 (5th Cir.1994);
Black v. Collins, 962 F.2d 394, 398 (5th Cir.), cert. denied, 504
U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). Consequently, we
construe Newby's notice of appeal as a request for issuance of CPC.
See Fed.R.App.P. 22(b).
To obtain CPC, Newby must make a substantial showing that he
has been denied a federal right. Barefoot v. Estelle, 463 U.S.
880, 893, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090 (1983). To make
1To the extent that our unpublished per curiam decisions in
Rome v. Kyle, No. 93-5551, 42 F.3d 640 (5th Cir. Nov. 30, 1994) and
Delvin Johnson v. Scott, No. 94-40942, 56 F.3d 1385 (5th Cir. May
19, 1995) may suggest that a CPC is not required when attacking the
decision of the parole and pardons board, they depart from Story
and consequently are not controlling. See United States v. Miro,
29 F.3d 194, 199 n. 4 (5th Cir.1994).
3

such a showing, Newby must "demonstrate that the issues [he raises]
are subject to debate among jurists of reason; that a court could
resolve the issues in a different manner; or that the questions
are worthy of encouragement to proceed further." Byrne v. Butler,
845 F.2d 501, 505 (5th Cir.1988) (citing Barefoot, 463 U.S. at 893
n. 4, 103 S.Ct. at 3394 n. 4).
In his petition for writ of habeas corpus, Newby alleges two
related federal constitutional deprivations. First, he alleges
that his loss of credit for "street time served on parole" prior to
the revocation of his parole resulted in a federal constitutional
violation of due process of law. Second, Newby asserts that the
failure to warn him that parole revocation may trigger forfeiture
of his credit for "street time" constituted a violation of his due
process rights.
We find these claims to be without merit. First, Newby
concedes that the denial of credit for street time did not
constitute an error under Texas law. Additionally, Newby fails to
cite any authority to support his argument that he has suffered
some sort of federal due process violation. In a similar case, in
fact, this Court has concluded that there is not a statutory right
to credit on a federal sentence for time spent in custody pursuant
to a related state charge. See United States v. Walker, 710 F.2d
1062, 1070-71 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104
S.Ct. 995, 79 L.Ed.2d 229 (1984). Second, without deciding whether
such a failure may impinge a constitutional right, the record
demonstrates that Newby did indeed receive the notice to which he
4

claims an entitlement.
Given the lack of both legal authority and factual support
for his assertions of federal constitutional deprivations, Newby
has failed to make a "substantial showing of the denial of a
federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct.
3383, 3394, 77 L.Ed.2d 1090 (1983). Accordingly, his application
for CPC must be, and is hereby, DENIED. Lacking jurisdiction over
this appeal, it is hereby
DISMISSED.

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