Carroll v. Kyle

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-50928 Summary Calendar __________________

RANDY LORINE CARROLL,

Plaintiff-Appellant,

versus

VICTOR RODRIGUEZ; TEXAS BOARD OF PARDONS & PAROLES; JUDITH D. MILLER,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. MO-95-CV-106 - - - - - - - - - - May 21, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Randy Lorine Carroll appeals the district court's dismissal

of his habeas corpus claims for failure to exhaust state remedies

and the court's dismissal as frivolous of his civil rights

claims. Carroll's petition is more properly construed as a

petition pursuant to 28 U.S.C. § 2241 rather than 28 U.S.C.

§ 2254. See United States v. Tubwell, 37 F.3d 175, 177 (5th Cir.

1994). The district court did not abuse its discretion by

dismissing the § 2241 petition for failure to exhaust. See

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-50928 -2-

Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Further, the

district court did not abuse its discretion by dismissing

Carroll's civil rights claim as frivolous under 28 U.S.C.

§ 1915(d). See Heck v. Humphrey, 114 S. Ct. 2364 (1994).

The judgment of the district court is AFFIRMED. Carroll's

motion to stay the appeal pending his exhaustion of state

remedies is DENIED.

AFFIRMED.