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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(5th Cir. 1997). Under the AEDPA, Munoz

cannot appeal the district court’s dismissal of his

petition unless the district court or this court grants

him a certificate of appealability (COA). § 2253 (c)(1)(A);

Muniz v. Johnson,

(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.