                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                        _______________________

                              No. 99-40359
                            Summary Calendar
                        _______________________


RICHARD C. RODRIGUEZ,

                                                        Petitioner-Appellant,

                                  versus

PERCY H. PITZER,

                                                        Respondent-Appellee.


_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                          No. 1:98-CV-1937
_________________________________________________________________

                              April 10, 2000

Before JONES, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

           Appellant Rodriguez, now incarcerated in federal prison

for   heroin   trafficking    charges,      appeals   the    district       court’s

dismissal of his habeas petition as a successive petition under 28

U.S.C. §   2255,   whose     filing   was    unauthorized      by    this    court.

Because we conclude that the petition reaches the means and manner

of    execution    of   Rodriguez’s         sentence,       rather    than      its

constitutionality, we must reverse and remand.


      *
      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this opinion should not be published and is not precedent except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.
            Rodriguez is serving a 14-year sentence in federal court,

a sentence imposed shortly after he violated his parole from a 25-

year term imposed by Texas for burglary of a habitation.        While the

federal district court did not advise that the federal sentence was

to run concurrently with the state sentence, Rodriguez asserts that

the state court did so specify.      Now in federal custody, Rodriguez

wants the Bureau of Prisons to designate the state penitentiary as

the “place of confinement” for purposes of his federal sentence,

and he asserts that the U.S. Marshal should have “assumed custody

over him” at some earlier date so that he could have been serving

his federal sentence concurrently with the state sentence.

            Neither the background of nor the specific allegations in

Rodriguez’s petition are further germane. After receiving briefing

from Rodriguez and from the Bureau of Prisons, the district court

determined that Rodriguez was pursuing a successive § 2255 habeas

petition.     The court reasoned that a previous § 2255 petition,

filed in the Western District of Texas, sought essentially the same

relief,     although   it   characterized   the   claim   as   being   for

ineffective assistance of counsel on the grounds that Rodriguez’s

attorney failed to request the district court to specify whether

his federal sentence would run concurrently or consecutively with

the state sentence.

            With due respect to the district court, we believe the

instant petition addresses the manner and means of execution of the

sentence rather than its inherent constitutionality. Had Rodriguez

succeeded on his § 2255 petition, he would have been entitled to


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resentencing, whereas in this case, if he obtains relief, he would

receive some kind of declaration that the sentences were to run

concurrently.      Additionally, in Barden v. Keohane, 921 F.2d 476

(3rd Cir. 1990), the Third Circuit determined that a petition

raising a challenge very similar to that of Rodriguez falls within

the scope of 28 U.S.C. § 2241, and § 2241 is not encompassed within

the AEDPA bar on successive habeas petitions.

           We note that the government has failed to brief on appeal

the   contention   it   raised,   in   the   trial   court,   that   even   if

Rodriguez’s petition is properly characterized as falling under

§ 2241, he has no statutory or other basis for relief from either

the Bureau of Prisons or the federal court’s initial failure to

specify. Because the government did not brief this issue, however,

we leave it to the district court on remand.

           The judgment of the district court is vacated and the

case is remanded        for consideration on the merits pursuant to

§ 2241.

           VACATED and REMANDED.




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