IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-10340

CLYDE WESLEY STRINGER

Petitioner-Appellant,

v.

DAVID WILLIAMS, Tarrant County Sheriff

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

November 16, 1998

Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case presents a state prisoner w ho, relying on double

jeopardy and collateral estoppel grounds, seeks to enjoin his

further prosecution. We have no jurisdiction to grant relief for

any violation of state law, and we find that the prisoner’s

underlying constitutional claims have no merit. We therefore

refuse to grant a certificate of appealability, and we dismiss the

appeal.

I.

In August 1995, Clyde Stringer, on parole from a prior felony

conviction, was charged by a Texas grand jury in four separate

indictments with two counts of possession of a controlled

substance, and one count each of possession of a firearm by a felon2

and aggravated robbery. On September 25, 1995, a hearing officer

determined that Stringer had violated his parole by committing the

offense of possession of a firearm by a felon and one of the

charged offenses of possession of a controlled substance. The

hearing o fficer, however, determined that there was insufficient

evidence to show that Stringer had committed the aggravated robbery

or the other co ntrolled substance offense. Based on these

findings, the parole board revoked Stringer’s parole. Stringer now

seeks to prevent Texas from prosecuting him for any of the four

charged offenses.

After exhausting state habeas remedie s, Stringer filed an

application, which he styled as being pursuant to 28 U.S.C. § 2241,

in federal district court, challenging th e pending prosecutions.

He contended that the state was barred on double jeopardy grounds

from prosecuting him for the two offenses that the hearing officer

determined he had committed, and was barred on collateral estoppel

grounds from prosecuting him for the other two offenses. Stringer

maintained that the state had already punished him fo r those

offenses by revoking his parole and by failing to give him credit

towards his prior sentence for the time that he successfully spent

on parole.

On March 11, 1998, the district court, characterizing

Stringer’s habeas petition as being pursuant to 28 U.S.C. § 2254,

dismissed it. Because Stringer sought an injunction against

ongoing state criminal proceedings, the court ruled that abstention

was required under Younger v. Harris

, 401 U.S. 37, 49-52 (1971).3

After Stringer filed his notice of appeal, the district court on

March 18, 1998, construed this notice as a request for a

certificate of appealability, see Murphy v. Johnson , 110 F.3d 10,

11 (5th Cir. 1997), and denied the certificate.

II.

As a threshol d matter, we must determine whether a state

prisoner whose parole has been revoked and who awaits trial on

additional state charges requires a certificate of ap pealability

(COA) to challenge dismissal of a habeas petition. Under 28 U.S.C.

§ 2253, a COA is needed to appeal either (1) “the final order in a

habeas corpus proceeding in which the detention complained of

arises out of process issued by a State court” or (2) the final

order in a § 2255 proceeding.

The reco rd here does not make clear whether Stringer is

currently being detained pursuant to the revocati on of parole,

which he does not challenge here; or whether that period of

incarceration has expired or he is otherwise being held as a

pretrial detainee. Only in the latter event would “the detention

complained of arise[] out of process issued by a State court.” The

ultimate disposition of the case, however, turns out to be the same

regardless of Stringer’s stat us. We thus initially assume that

Stringer is being held solely as a pretrial detainee, and we will

reverse this assumption subsequently.

In Ojo v. INS , 106 F.3d 680, 681 (5th Cir. 1997), we stated:

By its terms, § 2253 requires COA’s only for appeals in

habeas proceedings involving process issued by a state

court ( i.e., proceedings under 28 U.S.C. § 2254) and

appeals from final orders in proceeding s under § 2255.4

Conspicuously absent from the statute is any mention of

appeals in § 2241 proceedings.

Id. We therefore must determine first, whether Stringer’s petition

is properly characterized as a § 2241 petition. We think that it

is.

Section 2254 “applies only to post-tri al situations and

affords relief to a petitioner ‘in custody pursuant to the judgment

of a state court.’” Dickerson v. State of Louisiana

, 816 F.2d 220,

224 (5th Cir. 1987) (quoting § 2254). Pretrial petitions are

properly brought under § 2241, “which applies to persons in custody

regardless of whe ther final judgment has been rendered and

regardless of the present status of the case pending against him.”

Id. (footnote omitted); see also § 2241(c)(3) (“The writ of habeas

corpus shall not extend to a prisoner unless ... [h]e is in

custody in violation of the Constitution or laws or treaties of the

United States.”). Although Stringer is “in custody pursuant to the

judgment of a state court,” i.e. the prior felony conviction for

which his parole was revoked, he is not attacking the state court

judgment. Rather, he is seeking release from the pending state

criminal proceedings against him. Therefore, we should construe

Stringer’s filing as a habeas petition with § 2241 as the

jurisdictional basis. See Dickerson , 816 F.2d at 224; Robinson v.

Wade , 686 F.2d 298, 302-03, 303 n.8 (5th Cir. 1982).

Ojo involved a federal detainee involved in deportation

proceedings, rather than a state prisoner confined by process

issued by a state court. See 106 F.3d at 682. We concluded that

a COA was not required in the § 2241 proceeding at issue there,5

bec ause § 2253 clearly does not encompass challenges to federal

detention under § 2241. Just as clearly, however, § 2253 does

e ncompass challenges to state detention under § 2241, since “the

detention complained of arises out of process issued by a State

court.” We hold that, assuming Stringer is a pretrial detainee, he

must obtain a COA.

III.

To obtain a COA, Stringer must make “a substantial showing of

the denial of a constitutional right.” § 2253(c)(2). The district

court rejected Stringer’s request for a COA, and we must consider

whether to grant a COA. S ee id. ; s ee also Fed. R. App. P. 22(b)

(“If the district judge has denied the certificate, the applicant

for the writ may then request issua nce of the certificate by a

circuit judge.”).

A.

The district court dismissed Stringer’s claims on the basis of

Younger abstention, perhaps viewing the claims as cognizable, if at

a ll, under state law. We read the petition to assert double

jeopardy and collateral estoppel as constitutional protection from

a second “trial.” We therefore do not rely on Younger abstention.

See Showery v. Samaniego

, 814 F.2d 200, 201 n.5 (5 th Cir. 1987)

(finding that the Younger doctrine does not apply to double

jeopardy claims); see also Nichols v. Scott

, 69 F.3d 1255, 1269

(5th Cir. 1995).

B.6

I n United States v. Whitney

, 649 F.2d 296 (5th Cir. U nit B

June 1981), we held that the Double Jeopardy Clause does not apply

to parole and probation revocation proceedings. We distinguished

Breed v. Jones

, 421 U.S. 519 (1975), in which the S upreme Court

held that the Clause barr ed the prosecution of a juvenile as an

adult for conduct that had resulted already in a juvenile court

adjudication. As we explained in W hitney : “[P]arole and probation

revocation pr oceedings are not designed to punish a criminal

defendant for violation of a criminal law.” 649 F.2d at 298. The

holding in Whitney contro ls. C f. Douglas v. United Servs.

Automobile Ass’n

, 79 F.3d 1415, 1422 n.8 (5th Cir. 1996) (noting

that “Unit B” cases are binding precedent on the Fifth Circuit).

C.

In Ashe v. Swenson

, 397 U.S. 436, 445 (1970), the Supreme

Court noted that the doctrine of collateral estoppel is “embodied

in the Fifth Amendment guarantee against double jeopardy.” If

Stringer’s collateral estoppel claim is simply an effort to state

a Double Jeopardy Clause claim, it fails as we explained. If it is

an effort to state an independent violation of the Fourteenth

Amendment’s Due Process Clause, it also fails. The Showery court

refused just such an attempt: “We are unper suaded . . . by his

attempts to erect a due process basis, independent of the double

jeopardy clause, for the application of collateral estoppel.” 814

F.2d at 203.7

Stringer may be attempting to state a claim under Texas law.

Indeed, in Ex parte Tarver , 725 S.W.2d 195 (Tex. Crim. App. 1986)

(en banc), the Texas Court of Criminal Appeals held that collateral

estoppel applies to prevent prosecution of an offense that the

state failed to establish in a probation revocation hearing. Even

so, prosecuti on would not constitute a “violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241(c)(3); cf. Pennhurst State Sch. & Hosp. v. Halderman

, 465

U.S. 89 (1984) (identifying constitutional limitations on the power

of federal district c ourts to impose injunctive relief based on

state law). The state claims are for the state court.

D.

Relatedly, if Stringer is not complaining of his current

detention, bu t merely trying to enjoin a pending prosecution, he

cannot do so.

IV.

We refuse to issue a certificate of appealability, and we deny

injunctive relief from the pending state prosecutions.

DISMISSED.