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

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

2 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,

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

raising a challenge very similar to that of Rodriguez falls within

the scope of

, 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.

3