                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 17, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-20462
                          Summary Calendar


ALEJANDRO GARCIA LOPEZ,

                                    Petitioner-Appellant,

versus

NATHANIAL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:06-CV-1345
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Alejandro Garcia Lopez, Texas prisoner # 1195889, seeks a

certificate of appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition for failure to

state a claim and as frivolous.   The district court construed

Lopez’s petition as raising only a claim relating to the denial

of parole and held that Lopez had no liberty interest in being

released on parole.   Lopez was convicted following a guilty plea




     *
       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this opinion should not be published and is not precedent except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. 06-20462
                                - 2 -

to driving while intoxicated and was sentenced to a term of

imprisonment of fifteen years.

      A COA may be issued only if the prisoner has made a

“substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).    Such a showing requires that a

petitioner “demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims

debatable or wrong.”   Slack v. McDaniel, 529 U.S. 473, 484

(2000).

     Lopez argues that the district court erred in summarily

dismissing his § 2254 petition because he had alleged the denial

of a protected liberty interest.    He contends that he was

deprived of a liberty interest when he was denied "supervised

release" once he was "declared eligible for parole."    He states

that he was twice “declared eligible for mandatory supervision”

and that both times he was denied “parole.”    He argues that the

denial resulted in a violation of his right to equal protection

and due process.

     Lopez’s habeas petition did not raise a claim that he was

denied equal protection.    A petitioner cannot pursue claims

raised for the first time in a COA motion.    Whitehead v. Johnson,

157 F.3d 384, 387-88 (5th Cir. 1998).

     It is unclear from Lopez’s § 2254 petition whether he was

alleging that he was entitled to release on mandatory supervision

or on parole as he identified both kinds of release in his
                            No. 06-20462
                                - 3 -

petition.    Lopez has no liberty interest in being released on

parole, but he may have a liberty interest in being released on

mandatory supervision under current Texas law.    See TEX. GOVT.

CODE §§ 508.147, 508.149; Madison v. Parker, 104 F.3d 765, 768

(5th Cir. 1997); Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir.

2000); Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim. App. 2000)

(en banc).    Reasonable jurists would therefore find debatable the

correctness of the district court’s summary dismissal of the

petition as frivolous and for failure to state a claim absent any

clarification of the nature of Lopez’s complaint.    Therefore, the

motion for COA is granted, the judgment is vacated, and the case

is remanded to the district court for further proceedings.

     COA GRANTED; JUDGMENT VACATED AND CASE REMANDED.
