IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-20600 USDC No. CA-H-94-1957 __________________

JAMES GLENN HUTSON,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division; JACK W. DIEKEN, Sheriff; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

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

Appeal from the United States District Court for the Southern District of Texas

--------------------- November 30, 1995

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

James Glenn Hutson has filed a motion for a certificate of

probable cause (CPC) to appeal the district court's dismissal of

his petition for habeas corpus. Because Hutson is not attacking

a state-court conviction, but a detainer lodged on charges

pending in Oklahoma, his petition is more properly construed as

* 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 Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-20600 -2-

arising under

rather than under § 2254. See

Dickerson v. State of La.,

(5th Cir.), cert.

denied,

(1987); see also Braden v. 30th Judicial

Circuit Court of Ky.,

(1972). A CPC is not

necessary for the appeal because "the detention complained of

[does not] arise[] out of process issued by a State court." Fed.

R. App. P. 22(b). Accordingly, Hutson's motion for a CPC is

DENIED as unnecessary. However, because neither of the reasons

for dismissal given by the district court were appropriate, we

VACATE the court's dismissal and remand the case for further

proceedings. See Clark v. Williams,

(5th

Cir. 1982).

A person in custody in one state against whom another state

has a detainer may attack the interstate detainer by applying for

federal habeas corpus in the detaining state. Gibson v.

Klevenhagen,

(5th Cir. 1985)(citing Braden,

). In Braden, charges were pending in Kentucky

against the petitioner who was incarcerated in Alabama. Braden,

. The petitioner attacked Kentucky's failure to

execute the interstate detainer it had filed.

. In

determining that the petitioner was in the proper forum, the

Supreme Court reasoned that the Alabama warden was acting as the

agent of Kentucky authorities in holding the petitioner pursuant

to the Kentucky detainer.

at 489 n.4. Thus, the Texas

official holding Hutson pursuant to the Oklahoma detainer is

acting as an agent of Oklahoma, and the district court had

jurisdiction to consider the petition. No. 95-20600 -3-

Moreover, Hutson's petition was not filed in the wrong

venue. Hutson currently is assigned to TDCJ's Huntsville Unit

which is located in Walker County, Texas, and is within the

Southern District of Texas. See

(b)(2); see also

United States v. Gabor,

(5th Cir. 1990)(§ 2241

petition is properly filed in district in which petitioner is

incarcerated).

Hutson's original petition, insofar as it requested only

that he be transferred to TDCJ/ID so that the detainer could be

executed, was mooted when Hutson was transferred. However, the

district court should have construed Hutson's "motion for default

summary judgment and objection to an extension of time and

objection to venue change" as a motion to amend Hutson's original

petition and granted it. See Sherman v. Hallbauer, 455 F.2d at

1236, 1242 (5th Cir. 1972)(memo opposing summary judgment raised

a new issue and should have been treated as a motion to amend and

granted). In that pleading, filed after Hutson was transferred

to TDCJ/ID, Hutson continued to challenge the Oklahoma detainer.

Thus, there remains a viable cause of action based on the alleged

violation of the IADA. See Gibson,

. It is

unclear from the record, however, whether the Oklahoma detainer

is still valid. Hutson's pleadings and some of the attachments

thereto suggest that the detainer was withdrawn when he was

transferred from the Taylor County jail to Huntsville and that it

was not reissued. The respondent averred in the district court

that the detainer had been withdrawn. No. 95-20600 -4-

The judgment is VACATED and the case REMANDED to the

district court to determine: (1) whether the Oklahoma detainer

is still valid to the extent that Hutson is "in custody" because

of it; (2) if Hutson is in custody, whether he has exhausted

state remedies; and (3) the merits of Hutson's challenge to the

Oklahoma detainer under the IADA, if he has exhausted remedies.

See Braden,

n. 4 (discussing the "in custody"

requirement); and Gibson,

(discussing exhaustion

requirements for IADA claim).