Grogan v. Terrell ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30855
USDC No. 95-CV-121
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RAYWARD GROGAN, JR.,
Petitioner-Appellant,
versus
TERRY TERRELL, Warden,
Allen Correctional Center,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
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February 6, 1996
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:
Rayward Grogan, Jr. moves this court for a certificate of
probable cause (CPC). The issuance of a CPC is unnecessary to
establish appellate jurisdiction because the detention complained
of, loss of good-time credit, does not arise out of process
issued by a state court. See 28 U.S.C. § 2253. Therefore, the
petitioner's motion for CPC is DENIED as unnecessary.
Grogan's petition is construed as being brought under 28
U.S.C. § 2241 because he does not contest the legality of his
conviction or the validity of his initial sentence. See Story
v. Collins, 920 F.2d 1247, 1250 (5th Cir. 1991) (jurisdiction
No. 95-30855
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over state prisoner's good-conduct claim is based on § 2241
rather than § 2254).
The district court determined that although Grogan had not
exhausted his state-court remedies, he was procedurally barred
from doing so. The respondents and Grogan do not dispute that he
was procedurally barred from bringing his claim in state court.
Although the district court erroneously disposed of the petition
as a § 1983 action, the procedural-default doctrine forecloses
federal review. Duff-Smith v. Collins, 973 F.2d 1175, 1180 (5th
Cir. 1992)(§ 2254 case), cert. denied, 113 S. Ct. 1958 (1993).
AFFIRMED.