                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                              F I L E D
                                                                                                May 11, 2004
                     IN THE UNITED STATES COURT OF APPEALS
                              FOR THE FIFTH CIRCUIT
                                                                                          Charles R. Fulbruge III
                                                                                                  Clerk


                                        No. 03-61065
                                  USDC No. 3:03-CV-1211-WS
                                      Summary Calendar



ROBERT ALLEN,

                                                                                        Plaintiff-Appellant,

                                                 versus

RONNIE MUSGROVE, Governor; AMY TUCK, Lieutenant Governor;
CHRISTOPHER EPPS, Mississippi Department of Corrections Commissioner;
RON KING, Southern Mississippi Correctional Institution - Warden;
JOHNNIE DENMARK; JANE T BOND, Mississippi Department of Corrections-
Records Director; JOHN DOES;

                                                                                      Defendants-
                                                          Appellees.

                       ------------------------------------------------------------
                           Appeal from the United States District Court
                              for the Southern District of Mississippi
                       ------------------------------------------------------------

Before SMITH, DeMOSS, AND STEWART, Circuit Judges:

PER CURIAM:*

       Robert Allen (“Allen”), Mississippi prisoner #85120, appeals the district court’s dismissal of

his civil action with prejudice as to it being brought under 42 U.S.C. § 1983 and without prejudice




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
for failure to exhaust state remedies as to it being brought as a habeas corpus action pursuant to 28

U.S.C. § 2254.

       To the extent that Allen is appealing the district court’s dismissal of his habeas corpus claims,

Allen must obtain a certificate of appealability (“COA”) before we have jurisdiction to consider his

appeal. See 28 U.S.C. § 2253(c). The district court, however, did not rule on whether Allen should

be granted a COA to appeal the dismissal of his habeas corpus claims. Although Allen has not

requested a COA to appeal the dismissal of his habeas corpus claims, this court may construe his

notice of appeal as such a request. See FED. R. APP. P. 22(b)(2).

       Until the district court issues a COA ruling, this court lacks jurisdiction to address Allen’s

appellate COA request. See United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997).

Accordingly, the case is REMANDED to the district court for the LIMITED PURPOSE of

determining whether a COA should issue in accordance with FED. R. APP. P. 22(b) and 28 U.S.C. §

2253(c). See Youngblood, 116 F.3d at 1115. Once the district court has issued such a ruling, this

court will consider both Allen’s COA request and his 42 U.S.C. § 1983 claims.

       LIMITED REMAND.




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