IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-30865 Summary Calendar __________________

CLARENCE STEWART, JR.,

Petitioner-Appellant,

versus

BURL CAIN, Acting Warden, Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 95-CV-706 - - - - - - - - - - November 21, 1995 Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

Clarence Stewart, Jr., appeals the district court's denial

of his habeas petition for failure to exhaust state remedies.

Stewart filed his petition for writ of habeas corpus pursuant to

. Because Stewart is not challenging the

legality of his conviction or the validity of his initial

sentence, however, he is not entitled to relief under § 2254.

See United States v. Gabor,

(5th Cir. 1990);

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-30865 -2-

Story v. Collins,

(5th Cir. 1991).

Stewart is attacking the manner in which his sentence is being

executed; thus, his petition for writ of habeas corpus is more

properly construed as seeking relief pursuant to § 2241. See

Gabor,

.

The district court determined that Stewart had not exhausted

his state court remedies. Although § 2241 contains no explicit

exhaustion requirement, this court has required a petitioner

seeking relief under § 2241 first to exhaust his state remedies.

See Dickerson v. Louisiana,

(5th Cir.), cert.

denied,

(1987). Stewart does not challenge the

district court's denial of his habeas petition for failure to

exhaust state remedies in his appellate brief. As the record

does not show that Stewart has exhausted his state remedies, the

district court's dismissal of his habeas petition for failure to

exhaust is AFFIRMED.