                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 27, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-51123
                         Summary Calendar



ROQUE TERCERO-ARANDA,

                                    Petitioner-Appellant,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 3:02-CV-241
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     An in absentia deportation order was entered against Roque

Tercero-Aranda (Aranda) in 1993.   Aranda has been serving a 15

year sentence in Texas state prison for burglary of a habitation.

Immigration authorities have lodged a detainer against Aranda so

that, when he is released by Texas authorities, he is released

directly to the immigration authorities for deportation.       Aranda

filed a 28 U.S.C. § 2241 petition asserting that the Attorney

General had custody over him by virtue of the detainer and that


     *
       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this opinion should not be published and is not precedent except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. 04-51123
                                 -2-

he should therefore be turned over immediately to immigration

authorities.    He further asserted that he had been under the

Attorney General’s constructive custody longer than was permitted

and that he should simply be released from incarceration

altogether.    The district court denied Aranda’s § 2241 petition,

and we affirmed the district court’s judgment.

     Aranda filed a motion pursuant to FED. R. CIV. P. 60(b) in

the district court.    He argued that neither the district court

nor this court had jurisdiction over his § 2241 petition because

the Attorney General did not have custody over him and was not,

therefore, a proper party-respondent to his petition.     Citing

Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004), the district

court pointed out that the Supreme Court had explicitly left open

the question whether the Attorney General was a proper party-

respondent in a case such as this.    The district court denied

Aranda’s Rule 60(b) motion, and this appeal followed.

     Aranda seeks to proceed in forma pauperis (IFP) in this

court.    There is no question that Aranda is a pauper.   However,

Aranda’s primary argument, that a different district court

ordered service of process of a § 2241 petition on a prison

warden as Aranda’s custodian, is insufficient to show that the

district court abused its discretion in denying the Rule 60(b)

motion.    See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402

(5th Cir. 1981).    Aranda’s arguments concerning mootness,

ripeness, and prematurity were not raised in district court.
                           No. 04-51123
                                -3-

     Because Aranda has not raised any arguable legal issues on

appeal, his appeal is frivolous.   See Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983).   Aranda’s motion for IFP is

therefore denied, and his appeal is dismissed.   See 5TH CIR.

R. 42.2.   Aranda’s motion for stay of deportation is also denied.

     ALL OUTSTANDING MOTIONS DENIED; APPEAL DISMISSED.
