IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40786 Conference Calendar

JAMES WILLIE DUKE, III,

Petitioner-Appellant,

versus

UNKNOWN PERSON CHANDLER, Warden, Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:99-CV-280 - - - - - - - - - - February 16, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

James Willie Duke, III, federal prisoner # 24193-077,

appeals the district court’s denial of his habeas petition that

invoked

. He also requests a certificate of

appelability (COA) for claims arising under

. To

obtain a COA, Duke must make a substantial showing of the denial

of a constitutional right.

(c)(2). When

challenging a dismissal on procedural grounds, such as the

dismissal for lack of jurisdiction presented here, Duke must make

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40786 -2-

a credible showing that the district court erred when it

dismissed his claim. See Whitehead v. Johnson,

(5th Cir. 1998).

Duke argues the following: (1) the district court erred when

it dismissed issues arising under § 2255 that related to

sentencing; and (2) the indictment in his underlying criminal

trial was insufficient. Duke also filed a motion to supplement

the record and a motion for appointment of counsel. These

motions are DENIED.

To the extent that Duke has made a § 2241 claim relating to

credit for time served in state prison, the judgment of the

district court is AFFIRMED because Duke has failed to argue the

issue on appeal. See Brinkmann v. Dallas County Deputy Sheriff

Abner,

(5th Cir. 1987). Duke also has failed

to make a credible showing that the district court erred when it

dismissed his § 2255 claims relating to sentencing. See

Whitehead,

. This court will not consider the

issue whether the indictment was sufficient because it was raised

for the first time in Duke’s request for COA. See

.

Accordingly, Duke’s request for COA is DENIED.

The portion of the judgment relating to § 2241 is AFFIRMED.

COA is DENIED on all other issues. All other motions are DENIED.