                         UNITED STATES COURT OF APPEALS
                              For the Fifth Circuit



                                     No. 95-41010
                                   Summary Calendar




                               HAROLD FREDERICK KRUEGER,

                                                            Petitioner-Appellant,


                                          VERSUS


                                        W.F. WOODS,


                                                             Respondent-Appellee.



                  Appeal from the United States District Court
                       For the Southern District of Texas
                                  (CR-C-95-494)
                                 March 28, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

          Appellant, a federal prisoner, sued pro se under 28 U.S.C. §

2241 alleging that legal materials, including a pro se motion under

28       U.S.C.    §   2255,     were    wilfully     confiscated   from   him   and

negligently misplaced thereby obstructing his access to the courts

and rendering his continued incarceration unconstitutional.                      The

district court dismissed.               We affirm.

     1
   Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
     Appellant’s   legal   materials    were   wilfully    confiscated   in

connection with his transfer from one institution to another.

Marshals took the legal papers from him and they were thereafter

inadvertently misplaced.

     We construe the dismissal as one pursuant to 28 U.S.C. §

1915(d) because Defendants were not served with the complaint prior

to dismissal.

     Appellant’s complaint does not challenge the legality of his

conviction or the validity of his sentence and he is, therefore,

not entitled to relief under § 2255.       See United States v. Gabor,

905 F.2d 76, 77-78 (5th Cir. 1990).     Claims which attack the manner

in which a sentence is executed are proper under § 2441.           United

States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).         But relief under

this section is available only if custody is in violation of the

constitution or laws of the United States.      Appellant has not shown

that he is in custody in violation of the constitution or laws of

the United States and, therefore, denial of relief under § 2241 was

appropriate.

     The district court did not address Appellant’s claim that he

was denied access to the courts.       Since he is a federal prisoner,

and the defendants are federal, not state actors, such claim could

be brought pursuant to Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971).             The flaw in

Appellant’s denial of access argument, however, is that, while

confiscation of the materials was willing, it was the inadvertent

                                   2
loss of those materials which deprived him of access to the courts.

To constitute a constitutional deprivation the impairment of access

must be deliberate.   Jackson v. Procunier, 789 F.2d 307, 310-11

(5th Cir. 1986).   Accordingly, Appellant has failed to state a

claim for denial of access to the courts.

     AFFIRMED.




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