F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS AUG 6 1997
TENTH CIRCUIT PATRICK FISHER
Clerk
JODY MAPP,
Plaintiff-Appellant,
No. 96-8056
v. (D.C. No. 96-CV-64-J)
(WY)
STATE OF WYOMING,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Jody Mapp, a state prisoner appearing pro se, brought an action styled
motion for preliminary injunction pursuant to 42 U.S.C. § 1983. Mr. Mapp
asserted that he was denied the effective assistance of counsel during his state
criminal trial proceedings and requested injunctive relief reversing his conviction.
The matter was referred to a magistrate judge, who characterized the action as a
petition for writ of habeas corpus under 28 U.S.C. § 2254 and recommended
dismissal on the ground that Mr. Mapp had failed to exhaust his state post-
conviction remedies. The district court adopted the magistrate judge’s report and
denied Mr. Mapp a certificate of appealability.
We turn first to Mr. Mapp’s contention that the lower court erred in
characterizing his action as in the nature of a writ of habeas corpus. Mr. Mapp’s
pleading alleges that his counsel was ineffective and that his conviction must
therefore be set aside. “[W]hen a state prisoner is challenging the very fact or
duration of his physical imprisonment, and the relief he seeks is a determination
that he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973). Thus the magistrate judge did not err in
concluding that Mr. Mapp’s action was in effect a petition for habeas corpus
relief.
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We do not agree, however, with the district court’s holding that Mr. Mapp’s
action must be dismissed because of his failure to exhaust state post-conviction
remedies. The Supreme Court has held that a petitioner need not seek state post-
conviction relief before filing a petition for a federal writ of habeas corpus when
the state court has had the opportunity to rule on the substance of the federal
claim. “[O]nce the state courts have ruled upon a claim, it is not necessary for a
petitioner ‘to ask the state for collateral relief, based upon the same evidence and
issues already decided by direct review.’” Castille v. Peoples, 489 U.S. 346, 350
(1989) (quoting Brown v. Allen, 344 U.S. 443, 448-49 n.3 (1953)). Accordingly,
Mr. Mapp does not have to seek state post-conviction relief in order to satisfy
federal habeas exhaustion requirements if he has presented the claim to the state
court on direct appeal. Moreover, the Wyoming Supreme Court has held that “[a]
defendant cannot raise the issue of ineffective assistance of his trial counsel for
the first time in a post-conviction proceeding because that issue could have been
raised in the direct appeal.” Smizer v. State, 835 P.2d 334, 337 (Wyo. 1992).
Thus if Mr. Mapp has not presented his claim of ineffective assistance on direct
appeal, he is barred under state law from raising it in state post-conviction
proceedings. The claim would be considered exhausted under those
circumstances as well, see Wallace v. Cody, 951 F.2d 1170 (10th Cir. 1991)
(exhaustion does not require resort to futile state procedure), although his claim
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might then be subject to a procedural bar, see Coleman v. Thompson, 501 U.S.
722 (1991). It is thus clear that the magistrate judge’s recommendation, upon
which the district court order of dismissal is based, was incorrect. 1
The record in this case does not reveal whether Mr. Mapp has exhausted his
ineffective assistance claim, presumably because Mr. Mapp, who is pro se,
believed and continues to assert that his action is a section 1983 action, not one
for habeas corpus relief. Under these circumstances, and in view of the fact that
the basis upon which the action was dismissed was incorrect, Mr. Mapp should be
given the opportunity on remand to show that the substance of the federal claim
was presented to the state court or that such presentation would be futile.
Given Mr. Mapp’s assertion that his right to the effective assistance of
counsel was violated, and our conclusion that the district court erred in dismissing
his petition for failure to exhaust state post-conviction remedies, we conclude that
the question presented is deserving of further proceedings. Accordingly, we grant
Mr. Mapp a certificate of appealability. See 28 U.S.C. § 2253(c)(2) (1994);
1
As an independent ground for dismissal, the district court found and
concluded that Mr. Mapp had not met the requirements for the issuance of an
injunction under Fed. R. Civ. P. 65(b). Since we agree that this action was
properly characterized as one for habeas corpus relief, the requirements for
injunctive relief are therefore inapplicable.
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Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996). We also grant his motion for
leave to proceed informa pauperis.
REVERSED and REMANDED for further proceedings.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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