                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              OCT 6 2000
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 CURTIS L. CROY,

               Petitioner-Appellant,                    No. 00-6110
          v.                                                W.D. Okla.
 REGINALD HINES, Warden,                         (D.C. No. CIV 99-1441-W)

               Respondent-Appellee.


                            ORDER AND JUDGMENT          *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.            **




      Curtis L. Croy is currently incarcerated pursuant to a conviction of

distribution of a controlled dangerous substance, for which he was sentenced to

ten years of imprisonment. He began serving this sentence on August 10, 1994.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      **
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal.  See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, ordered submitted without oral argument.
       On February 9, 1996, Mr. Croy was granted parole but, on May 7, 1997, his

parole was revoked. He was then reincarcerated to serve the remainder of this ten

year sentence and received no credit for his “street time.”

       On September 22, 1999, Mr. Croy filed a petition for a writ of habeas

corpus in federal district court pursuant to 28 U.S.C. § 2254. In his petition, he

argued that Respondent’s failure to credit him with time spent on parole was a

violation of the Double Jeopardy Clause of the Constitution. The district court

adopted the report and recommendation of the magistrate judge and denied the

petition.

       Mr. Croy subsequently filed a notice of appeal with the district court, which

the district court construed as an application for a certificate of appealability, and

a motion for leave to proceed on appeal in forma pauperis. On May 19, 2000, the

district court declined to issue a certificate and denied the motion. Mr. Croy is

now appealing the district court’s order. Because Mr. Croy is proceeding pro se,

we liberally construe his pleadings.   See Haines v. Kerner , 404 U.S. 519, 520-21

(1972).

       The district court addressed Mr. Croy’s claims pursuant to 28 U.S.C. §

2254. However, in Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000), we

held that a petition filed by a state prisoner challenging the execution of a

sentence, rather than the validity of a conviction and sentence, is properly brought


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under our jurisdiction by 28 U.S.C. § 2241, not § 2254. There is no need,

however, to remand to the district court because the merits of Mr. Croy’s petition

are the same under either statute.     Cf. id. at 865 (noting that a remand was not

necessary because the claims of the petitioner were without merit). Furthermore,

under either statute, Mr. Croy is required to file a motion for certificate of

appealability to appeal the denial of his petition.   See id. at 869 (holding that a

certificate of appealability is needed for any challenge to the incidents and

circumstances of a detention under § 2241).

       A certificate of appealability “may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). We have thoroughly reviewed Mr. Croy’s application for a certificate

of appealability, the magistrate judge’s report and recommendation, the district

court’s order adopting that report and recommendation, and the entire record

before us. We conclude that Mr. Croy has failed to make a substantial showing of

the denial of a constitutional right for substantially the same reasons set forth in

the magistrate judge’s report and recommendation.       1




       1
         On appeal, Mr. Croy raises an issue that was not a part of his original
petition for a writ of habeas corpus. Following our general rule, we will not
decide this issue because it was not raised before the district court. See Tele-
Communications, Inc. v. Commissioner , 104 F.3d 1229, 1232 (10th Cir. 1997).

                                              -3-
       As for Mr. Croy’s motion to proceed on appeal in forma pauperis, we hold

that Mr. Croy has shown a “financial inability to pay the required filing fees and

the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.”   DeBardeleben v. Quinlan , 937 F.2d 502,

505 (10th Cir. 1991).

       Accordingly, we GRANT Mr. Croy’s motion to proceed in forma pauperis

and DISMISS the appeal.



                                                 Entered for the Court,



                                                 Robert H. Henry
                                                 Circuit Judge




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