                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT

                               _______________

                                No. 95-20154

                            (Summary Calendar)
                              _______________


                   ESEQUIEL RODRIGUEZ,

                                          Petitioner-Appellant,

                   versus

                   WAYNE   SCOTT,    Director, Texas
                   Department of Criminal Justice,
                   Institutional Division,

                                          Respondent-Appellee.


           _______________________________________________

             Appeal from the United States District Court
                  For the Southern District of Texas
                            (CA-H-89-4083)
           _______________________________________________

                        November 14, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

      Petitioner    Esequiel    Rodriguez    appeals    from   the   district

court's order denying his motion for a temporary restraining order.

We dismiss the appeal as frivolous.

      Rodriguez was convicted of attempted murder in a Texas state

court and sentenced to life imprisonment.               The district court

granted Rodriguez's federal petition for habeas corpus, set aside


            Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
his sentence, and remanded to the state court for resentencing.

Respondent Wayne Scott filed a timely notice of appeal.    Asserting

that the State of Texas has no right of appeal in habeas corpus

cases, Rodriguez filed a motion for a temporary restraining order

to prevent Scott from appealing the district court's grant of

habeas relief.   The district court denied Rodriguez's motion, and

Rodriguez filed a timely notice of appeal.

     We regularly entertain appeals in federal habeas cases where

the state is the appellant.    See, e.g., Cupit v. Whitley, 28 F.3d

532 (5th Cir. 1994) (vacating district court's grant of habeas

relief upon appeal by State of Louisiana).     In fact, such appeals

are specifically contemplated by FED. R. APP. P. 22(b), which

excuses a state or its representative, when appealing in federal

habeas cases, from the certificate of probable cause requirement.

The state court cases cited by Rodriguez, concerning a state's

right of appeal in state habeas proceedings, are not applicable to

federal habeas proceedings, which are governed by federal law.

     Because this appeal is without arguable merit, it is DISMISSED

as frivolous.    5TH CIR. R. 42.2.   Further, we warn Rodriguez that

any additional frivolous appeals filed by him or on his behalf may

be met with appropriate sanction, in accordance with FED. R. APP.

P. 38.




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