F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 16 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT D. BENTLEY,
Petitioner-Appellant,
No. 99-3163
v.
(District of Kansas)
(D.C. No. 99-CV-3133)
KANSAS SECRETARY OF
CORRECTIONS,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, 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)(2); 10th Cir. R. 34.1(G). The case 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This order and judgment is not binding precedent, except under the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.
Robert Bentley, proceeding pro se and in forma pauperis, seeks a
certificate of appealability (“COA”) so that he can appeal the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. §
2253(c)(1)(a). Because Bentley has not made a “substantial showing of the denial
of a constitutional right,” id. § 2253(c)(2), this court denies him a COA and
dismisses this appeal.
In his habeas petition, Bentley asserted that he was being improperly denied
access to Kansas legal resources and the Kansas courts and was thereby denied
any opportunity to challenge his 1977 Kansas conviction for second degree
murder. Although Bentley had been tried and convicted in Kansas, he is currently
serving his sentence in an Arizona prison pursuant to an inmate transfer
agreement between Kansas and Arizona. According to Bentley, the Arizona
prison is completely lacking in Kansas legal materials.
The district court dismissed Bentley’s § 2254 petition without prejudice on
the grounds that Bentley’s claims relate to the conditions of, rather than to the
fact or duration of, his confinement and, therefore, must be brought in a 42 U.S.C.
§ 1983 civil rights complaint. See Berry v. Scafe, No. 98-3194, 1999 WL 89152,
at *2-*3 (10 th Cir. Feb. 23, 1999) (discussing distinction between § 2254 habeas
petitions and § 1983 civil rights complaints and noting that they are not
interchangeable). The district court further noted Bentley had raised this identical
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claim in a prior § 2254 petition and that the earlier petition had also been
dismissed without prejudice on the grounds that the claims must be brought
pursuant to § 1983.
Upon de novo review of Bentley’s application for a COA and appellate
brief, the district court order of dismissal, and the entire record on appeal, this
court concludes that the district court’s resolution of this case is not debatable
among jurists of reason, subject to a different resolution on appeal, or deserving
of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4. (1983).
Accordingly, we DENY Bentley’s request for a COA for substantially those
reasons set forth in the district court’s order dated May 17, 1999, and DISMISS
the appeal.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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