IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30739
Summary Calendar
JUVENTINO MUNOZ,
Plaintiff-Appellant,
versus
JOHN M. MAMOULIDES;
LAWRENCE ALTERMAN,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-MC-1088
- - - - - - - - - -
December 11, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
The district court construed Juventino Munoz’s (Louisiana
prisoner # 352797) civil rights complaint as a petition for
habeas corpus. The court then dismissed the petition without
prejudice for failure to exhaust state remedies. Munoz
challenges the dismissal, arguing that the state waived the
exhaustion requirement.
*
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that this opinion should not be published and is not precedent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. 97-30739
-2-
Because Munoz filed his complaint in May 1997, the
provisions of the AEDPA are applicable. See Green v. Johnson,
116 F.3d 1115, 1120 (5th Cir. 1997). Under the AEDPA, Munoz
cannot appeal the district court’s dismissal of his 28 U.S.C.
§ 2254 petition unless the district court or this court grants
him a certificate of appealability (COA). § 2253 (c)(1)(A);
Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997).
Although this court will construe Munoz’s notice of appeal
as a request for COA in this court, there was no request for or
ruling on a COA in the district court. This case is therefore
REMANDED to the district court according to Muniz for the limited
purpose of obtaining a ruling on a COA.
REMANDED.