                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 22, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 02-51169
                          Summary Calendar


ALVARO LUNA HERNANDEZ,

                                    Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                    Respondent-Appellee.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                          USDC No. P-01-CV-21
                         --------------------

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Alvaro Luna Hernandez, Texas prisoner number 255735, seeks

permission to appeal in forma pauperis ("IFP") from the district

court's denial of release pending review of a 28 U.S.C. § 2254

petition.   He also moves to expedite the appeal.   To obtain leave

to proceed IFP on appeal, Hernandez must show that he is unable

to pay the cost of his appeal and demonstrate that he will raise




     *
        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that this opinion should not be published and is not precedent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. 02-51169
                                 -2-

a nonfrivolous issue on appeal.    See FED. R. APP. P. 24(a);

see also Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

     Hernandez argues that the district court’s denial of release

is immediately appealable, that the district court applied the

wrong standard for release, that the district court failed to

make findings of fact, and that he met the standard for release.

Release pending disposition of habeas review will be granted only

when the petitioner has raised a substantial constitutional claim

upon which he has a high probability of success, and also when

extraordinary or exceptional circumstances exist which make the

grant of bail necessary to make the habeas remedy effective.

Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974).

Regardless of the merits of Hernandez's 28 U.S.C. § 2254 claims,

upon which the district court has not yet ruled, Hernandez has

not shown any "extraordinary or exceptional circumstances" which

necessitate his release to make the habeas remedy effective.

The district court did not err by denying Hernandez's motion

for release.

     Hernandez has not shown that he will raise a nonfrivolous

issue on appeal.    Hernandez's motion for leave to proceed IFP

on appeal is DENIED.    His motion to expedite the appeal is

also DENIED.   The appeal is DISMISSED as frivolous pursuant to

5TH CIR. R. 42.2.

     IFP MOTION DENIED; MOTION TO EXPEDITE DENIED; APPEAL

DISMISSED.
