* 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that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-20140

Conference Calendar

__________________

ANTONE RICHIE,

 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-94-2635

- - - - - - - - - -

(October 25, 1995)

Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

Texas prisoner Antone Richie seeks a certificate of probable

cause (CPC) to appeal the district court's dismissal without

prejudice of his habeas corpus petition challenging the

revocation of his parole. Richie requests that the court allow

him to appeal in forma pauperis (IFP) and that counsel be

appointed. 
No. 95-20140

-2-

Although Richie's petition was brought under 28 U.S.C. 

§ 2241, the district court construed the petition as one under 28

U.S.C. § 2254 and dismissed it for failure to exhaust state

remedies. As Richie does not contest the legality of his

conviction or the validity of his initial sentence, the district

court erred by construing his petition under § 2254. Habeas

petitions challenging the revocation of the petitioner's parole

sound under § 2241. Johnson v. Scott, No. 94-40942 (5th Cir. May

19, 1995) (unpublished; copy attached); Rome v. Kyle, No. 93-5551

(5th Cir. Nov. 30, 1994) (unpublished; copy attached). 

Because the district court erred by treating the petition as

one under § 2254, the appeal is not frivolous, and the motion for

IFP is GRANTED. Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.),

cert. denied, 488 U.S. 931 (1988). Richie's motion for

appointment of counsel is DENIED. See 5th Cir. Plan Under the

Criminal Justice Act, § 2; Schwander v. Blackburn, 750 F.2d 494,

502 (5th Cir. 1985).

The issuance of a CPC is unnecessary to establish appellate

jurisdiction in this case because the detention that Richie

complains of, revocation of parole, does not arise out of process

issued by a State court. 28 U.S.C. § 2253. Richie's motion for

a CPC is DENIED AS UNNECESSARY. 

Although § 2241 contains no exhaustion requirement, this

court requires that a petitioner seeking relief under § 2241

first exhaust his state remedies. See § 2241(c)(3); Rome, No.

93-5551, slip op. at 5-6. The record indicates that Richie has

not exhausted remedies with regard to the revocation of his
No. 95-20140

-3-

parole. Therefore, the district court's dismissal of the

petition for failure to exhaust is AFFIRMED. See Bickford v.

Int'l Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. 1981)

(reversal is inappropriate if ruling of district court can be

affirmed on any grounds, regardless of whether those grounds were

used by district court); see also Clark v. Williams, 693 F.2d

381, 381-82 (5th Cir. 1982) (the court may dispose of the appeal

on the merits on a motion for IFP).

Richie's motions for bail, supplementation of the record and

to expedite proceedings are DENIED.