F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 29 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
KARL ELLIS-BEY,
Petitioner-Appellant,
vs. No. 97-3202
(D.C. No. 1083-5:97-3259-GTV)
L.E. BRUCE; CHARLES SIMMONS, (D. Kan.)
Secretary of Corrections, Kansas
Department of Corrections; J.
FISCHER, Records Clerk, Ellsworth
Correctional Facility; TERESA L.
SAIYA, KPB Administrator,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges. **
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in 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.
Mr. Ellis-Bey, an inmate appearing pro se and in forma pauperis, appeals
from the dismissal without prejudice of his habeas petition, 28 U.S.C. §2254, 1 for
failure to exhaust state remedies. The district court also denied Mr. Ellis-Bey’s
request for a certificate of appealability. See 28 U.S.C. § 2253(c)(1),(2).
Mr. Ellis-Bey contends that Defendants improperly aggregated his
sentences in violation of Kan. Stat. Ann. § 22-3717(f) (Supp. 1993). However,
the district court properly dismissed Mr. Ellis-Bey’s claims without prejudice, as
Mr. Ellis-Bey must exhaust state remedies available to him before a federal court
will examine his claims. See 28 U.S.C. § 2254(b)(1)(A); Miranda v. Cooper, 967
F.2d 392, 398 (10th Cir.), cert. denied, 506 U.S. 924 (1992). We accordingly
DENY Mr. Ellis-Bey’s motion for issuance of a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
1
Though Mr. Ellis-Bey’s pleadings posture this case as one arising under 28
U.S.C. § 1983, see I R. doc. 1 at 1-2(c), the district court properly construed his
request as one for habeas relief under 28 U.S.C. § 2254 because his claim, at
base, challenges the duration of his confinement. See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994) (no cause of action for damages under § 1983 unless
prior successful challenge to confinement); Preiser v. Rodriguez, 411 U.S. 475,
500 (1973).
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