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opinion should not be published and is not precedent except under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
2
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.
3