                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 02-10269
                           Summary Calendar



     RODRIGO CRESPO,

                                          Petitioner-Appellant,

            versus


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

                                          Respondent-Appellee.




         Appeal from the United States District Court for the
                      Northern District of Texas
                        USDC No. 5:01-CV-133-C

                           January 28, 2003


Before GARWOOD, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

     Rodrigo Crespo, Texas prisoner # 849315, appeals from the

denial of his “42 U.S.C. § 1983 complaint and/or Application for

Writ of Habeas Corpus” which the district court construed as a 28

U.S.C. § 2254 petition.    We granted a certificate of appealability

(“COA”) solely on the issue of whether Crespo alleged a protected


     *
      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opinion should not be published and is not precedent except under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.
property interest in money in his prison account requiring that he

be afforded procedural due process before prison officials may

deprive him of the funds in a disciplinary proceeding.                  The

respondent   argues   that   COA   was   improvidently    granted   because

Crespo’s property interest claim sounds in civil rights, not

habeas, and must be considered in a 42 U.S.S. § 1983 context, but

also stating “[i]f the court finds Crespo properly presented a

civil rights claim to the court below, the case should be remanded

for the limited issue of the availability of relief pursuant to 42

U.S.C. section 1983.”

     The respondent did not raise this argument below when Crespo

initially filed a purported 42 U.S.C. § 1983 complaint.             Nor did

respondent expressly address the property interest claim below. We

note that the district court properly construed Crespo’s claims

concerning the restoration of good time under 28 U.S.C. § 2254.

See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).              Assuming,

without deciding, that the respondent’s contention is correct,

Crespo’s pleading in the district court would have been a mixed

habeas/civil rights complaint, and the district court should have

considered   Crespo’s   property    interest   claim     separately.    See

Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); Serio v. Members

of Louisiana State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir.

1987).

     Because the district court did not explicitly address the


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property interest claim and because the respondent has taken no

position in this court (or the district court) on the availability

of relief under 42 U.S.C. § 1983, we VACATE the district court’s

judgment in part and REMAND for the district court to consider only

the property interest claim.   The district court should consider

whether Crespo has stated a cognizable claim under either 42 U.S.C.

§ 1983 (which may include whether or how Edwards v. Balisok, 520

U.S. 641 (1997), is applicable in these circumstances) or 28 U.S.C.

§ 2254 (although a favorable determination would not automatically

entitle Crespo to accelerated release) and whether the procedural

due process requirements of Wolff v. McDonnell, 418 U.S. 539, 564-

66 (1974), were satisfied. The district court may take any actions

it deems appropriate to resolve these two questions, including but

not limited to an order of further briefing or an evidentiary

hearing.

       AFFIRMED IN PART and VACATED IN PART and REMANDED.




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