* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20303

Summary Calendar

DALTON LOYD WILLIAMS,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CV-3565

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

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Dalton Loyd Williams, Texas prisoner #246571, seeks a

certificate of appealability (COA) to appeal the district court’s

dismissal, for lack of subject matter jurisdiction, of his 28

U.S.C. § 2254 petition challenging his guilty-plea conviction of

possession of cocaine, for which he received a 180-day sentence. 

Because the district court dismissed his petition on procedural

grounds without considering the merits of his claims, in order to
No. 05-20303

-2-

obtain a COA, Williams must “show[], at least, that jurists of

reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). 

Williams argues that the district court erred in dismissing

his § 2254 petition for lack of subject matter jurisdiction. He

does not dispute the district court’s determination that the 

180-day sentence imposed for possession of cocaine expired before

he filed his petition. He contends that he was convicted in 1975

of various charges including murder, and that he was paroled on

these charges in 1986. Williams argues that he is in custody

based on his conviction for possession of cocaine because this

conviction was the sole reason used by the Parole Board to revoke

his 1986 parole. 

A petitioner meets the jurisdictional “in custody”

requirement if the habeas petition could be construed as

asserting a challenge to the sentence presently being served as

enhanced by the prior conviction, for which the petitioner is no

longer in custody. See Lackawanna County Dist. Att’y v. Coss,

532 U.S. 394, 401-02 (2001). “‘[I]n custody’ does not

necessarily mean ‘in custody for the offense being attacked.’ 

Instead, jurisdiction exists if there is a positive, demonstrable

relationship between the prior conviction and the petitioner’s
No. 05-20303

-3-

present incarceration.” Sinclair v. Blackburn, 599 F.2d 673, 676

(5th Cir. 1979) (citation omitted). 

Williams has shown “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its

procedural ruling.” Slack, 529 U.S. at 484. The present record

does not support the district court’s dismissal of Williams’s 

§ 2254 petition on grounds that he was not “in custody” as a

result of his conviction for possession of cocaine. See Coss,

532 U.S. at 401-02; Sinclair, 599 F.2d at 676. 

Accordingly, Williams’s request for a COA is granted. The

judgment of the district court is vacated, and this matter is

remanded to the district court for further proceedings.

COA GRANTED; VACATED AND REMANDED.