F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS NOV 1 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
JOSEPH L. ANDERSON,
Plaintiff-Appellant,
v.
LOUIS E. BRUCE, Warden,
Hutchinson Correctional Facility;
WILLIAM E. CUMMINGS, Secretary
No. 01-3210
of Corrections designee; BARBRA
(D.C. No. 01-CV-3220-GTV)
SCHNIEDER, Records Clerk for
(Kansas)
Hutchinson Correctional Facility; R.
VIERYA, Unit Team Manager of
Hutchinson Correctional Facility; JON
D. GRAVES, Assistant Attorney
General for Kansas Department of
Corrections; JOHN/JANE DOES, in
their individual and official capacities,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
Joseph L. Anderson, appearing pro se, appeals the district court’s dismissal
of his case without prejudice. Mr. Anderson, a state prisoner in a Kansas
corrections facility, filed suit in federal district court under 42 U.S.C. § 1983,
claiming that the state Department of Corrections miscalculated his total prison
term in violation of his constitutional rights. In his claim, Mr. Anderson sought
both equitable and legal forms of relief. The district court held that challenges to
prison terms must be brought under habeas corpus rather than section 1983.
Accordingly, the district court construed Mr. Anderson’s claim as a petition for
federal habeas corpus under 28 U.S.C. § 2241, and dismissed the claim without
prejudice for failure to exhaust state remedies. The district court also declined to
grant a Certificate of Appealability (COA). Mr. Anderson appeals. For the
reasons stated below, we affirm the district court’s holding construing Mr.
Anderson’s claims as claims for habeas relief under section 2241 and deny a
COA. 1
Mr. Anderson presented his suit as arising under section 1983, but his
claim, as it currently stands, cannot be brought as a civil rights suit. As the
district court held, claims that challenge the fact of conviction or length of
Mr. Anderson’s motion requesting that we enter a default against
1
defendant for failure to file a brief is denied.
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incarceration are not cognizable under section 1983 because a more specific form
of legal challenge, habeas corpus, is available for this purpose. Preiser v.
Rodriguez, 411 U.S. 475 (1973). Mr. Anderson’s equitable relief claims are
direct challenges to his length of incarceration and therefore are not cognizable
under section 1983.
Moreover, Mr. Anderson may not bring his section 1983 damages claims at
this time. To bring a damages claim that directly or impliedly challenges the
validity of conviction or incarceration under section 1983, a claimant must have
first obtained a favorable decision in state court or in federal habeas proceedings
on the conviction or incarceration issue he seeks to challenge. Heck v. Humphrey,
512 U.S. 477, 486-87 (1994). See also Edwards v. Balisok, 520 U.S. 641, 645-46
(1997). Because Mr. Anderson has not obtained such a determination, his
damages claims are not currently cognizable under section 1983.
The appropriate avenue for challenging the execution of a sentence is a
habeas petition under 28 U.S.C. § 2241. The district court therefore properly
construed Mr. Anderson’s claim as a habeas petition filed pursuant to section
2241. The district court then dismissed without prejudice for failure to exhaust
state remedies.
Because we agree Mr. Anderson’s claim should be construed as a petition
for habeas relief, he must have a COA in order to appeal. See 28 U.S.C. §
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2253(c)(1)(A); see also Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000)
(“state prisoner must obtain a COA to appeal the denial of a habeas petition,
whether such petition was filed pursuant to § 2254 or § 2241, whenever ‘the
detention complained of . . . arises out of process issued by a State court’”)
(quoting 28 U.S.C. § 2253(c)(1)(A)). The district court declined to grant a COA.
Pursuant to Fed. R. App. P. 22(b)(2), Mr. Anderson’s notice of appeal is deemed
a renewed application for a COA.
Mr. Anderson is entitled to a COA only if he makes a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). A prisoner may
make this showing by demonstrating that the issues he seeks to raise on appeal are
1) deserving of further proceedings, 2) subject to a different resolution on appeal,
or 3) reasonably debatable among jurists of reason. See Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983). We agree with the district court that Mr. Anderson’s
federal habeas petition, so construed, is premature. Mr. Anderson’s petition for
state post-conviction relief is currently pending before state courts, and the state
has not waived exhaustion. Consequently, the petitioner has not satisfied the
prerequisites for bringing a federal habeas petition. 28 U.S.C. § 2254(b)(1).
Accordingly, he has not made the showing required for a COA.
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For the foregoing reasons, we DENY Mr. Anderson’s request for a COA
and DISMISS this appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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