No. 99-41069 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41069 Summary Calendar

DARVEN WILLIAMS,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeals from the United States District Court for the Eastern District of Texas USDC No. 1:99-CV-436 --------------------

January 24, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Darven Williams, Texas prisoner #588521, seeks a certificate

of appealability (COA) to appeal from the dismissal of his habeas

corpus application. Williams COA motion is GRANTED. Williams

also seeks to supplement the record; his motion to supplement is

DENIED. Williams argues that his 1998 conviction of disorderly

conduct violated the Double Jeopardy Clause because he was

convicted of the same offense in 1994 based on the same conduct;

that he received ineffective assistance of counsel regarding the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41069 -2-

1998 conviction; and that his administrative release improperly

was revoked based on the 1998 conviction.

The record indicates that Williams is in custody pursuant to

the revocation of his administrative release by the Texas Board

of Pardons and Paroles and that the Board’s action was based on

the 1998 disorderly conduct conviction. A prisoner may pursue

habeas corpus relief under

on the ground that he

is in custody pursuant to an unconstitutional action of a parole

board. Newby v. Johnson,

(5th Cir. 1996)

(challenging good-conduct time calculations); Story v. Collins,

(5th Cir. 1991)(same). The district court

should not have dismissed Williams’s habeas corpus application on

the basis that he was not in custody.

The district court dismissed Williams’s application and

denied him a COA solely on the basis that he was not in custody

for purposes of § 2254. We lack jurisdiction to consider a

prisoner’s underlying habeas contentions in a COA motion when the

district court has not considered them. Whitehead v. Johnson,

(5th Cir. 1998). We therefore lack

jurisdiction to consider Williams’s underlying habeas

contentions.

VACATED AND REMANDED.