* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 23 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTHUR BERRY, Petitioner - Appellant, No. 98-3194

v. (D.C. No. 97-3438-GTV) MARILYN SCAFE, Chairperson, Kansas Parole Board, (D. Kan.) Respondent - Appellee.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining Petitioner-Appellant’s brief and th e appellate record, this panel has determined unanimously that oral argumentwould 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 w ithout oral argument. Petitioner Arthur Berry is a prisoner in a correcti onal facility in Lansing, Kansas. Mr. Berry initiated this action by filing a complaint pursuant to 42 U.S.C. § 1983. He alleged that the Kansas Parole B oard’s application of a newly-2-

amended state statute extending the interval betwee n parole hearings from three years to a range of three to ten years violated his substantive due process rights and the Ex Post Facto Clause of the United States C onstitution. In his complaint, Mr. Berry states that he is seeking injunctive and declaratory relief. See R., Vol I., Doc. 1 at 5. Specifically, he asks the distric t court to “issue an order declaring the Kansas Parole Board’s action of passing Plainti ff for ten (10) years for a parole reconsideration hearing unconstitutional” an d “to issue an order directing the Kansas Parole Board to rescind its order passin g Plaintiff for ten (10) years and reschedule Plaintiff for a three (3) year defer ral parole hearing in accordance with the law in place at the time of Plaintiff’s co nviction.” Id. In response to Mr. Berry’s complaint, the district court issued an order in which it concluded that because the complaint raise d a “challenge [to] the length or fact of his confinement,” it should be construedas a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. R., Vo l. 1, Doc. 2 at 1. Because the court determined that Mr. Berry had failed to exhau st state court remedies, it dismissed the action without prejudice. See Kan. Stat. Ann. § 60-1501(a) (allowing persons in state custody to prosecute wri ts of habeas corpus). Mr. Berry then filed a motion requesting the district c ourt to reconsider its dismissal of his action, which the court construed as a motio n to alter and amend judgment pursuant to Federal Rule of Civil Procedure 59(e). The court denied the motion,-3-

stating that Mr. Berry did “not raise any new issue s which were not considered by the court when preparing its [original] order.” R. , Vol. I, Doc. 5 at 1. Mr. Berry then filed a notice of appeal and, presumably becau se the district court construed his action as a petition for a writ of habeas corpu s, an application for a certificate of appealability. On appeal, Mr. Berry contends that the district cou rt’s decisions construing his section 1983 complaint as a habeas corpus petit ion and dismissing the petition for failure to exhaust his state remedies were erro neous. Mr. Berry argues that because he is “ not seeking to challenge the length or fact of his con finement,” he is not required to file a section 2254 petition andexhaust his state remedies. Appellant’s Br. at 1-2. Mr. Berry further explains that since he is challenging the “parole decision process” and “not the denial of parole,” his claim is properly the subject of a section 1983 action. Id. at 2. We review de novo the legal bases for the district court's decision to construe Mr. Berry ’s complaint as a habeas corpus petition and its resulting dismissal. See Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir.), cert. denied , __ U.S. __, 119 S. Ct. 378 (1998). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We acknowledge that the distinction between section2254 petitions and section 1983 actions is not always easy to apply. The distinction may be especially blurry when “a prisoner challenges an un constitutional condition of-4-

confinement or prison procedure that affects the ti ming of his release from custody.” Carson v. Johnson , 112 F.3d 818, 820 (5th Cir. 1997) (holding that prisoner’s suit alleging that he was improperly pla ced in administrative segregation, that prisoners in administrative segre gation were never granted parole, and that his placement was not reviewed as often as required was properly construed as a section 1983 action). Nonetheless, distinguishing between the two types of actions is critical because while exhausti on of available and adequate state remedies generally is not a prerequisite to asection 1983 action, see Patsy v. Board of Regents , 457 U.S. 496, 501 (1982), exhaustion is required before a state prisoner may seek habeas corpus relief in fed eral court. See Rose v. Lundy , 455 U.S. 509, 515-16 (1982). Addressing the distinctions between habeas corpus p etitions and section 1983 actions, the Supreme Court has held that “habe as corpus is the exclusive remedy for a state prisoner who challenges the factor duration of his confinement and seeks immediate or speedier release, even thoug h such a claim may come within the literal terms of § 1983.” Heck v. Humph rey , 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez , 411 U.S. 475, 488-90 (1973)). By contrast, a sec tion 1983 action is typically the proper vehicle for att acking unconstitutional conditions of confinement and parole procedures. S ee Preiser , 411 U.S. at 498- 99; Carson , 112 F.3d at 820 (“Generally, § 1983 suits are the proper vehicle to-5-

attack unconstitutional conditions of confinement and prison procedures.”). In Heck , the Supreme Court addressed the types of claims f or which state prisoners may seek redress in section 1983 actions. See Heck , 512 U.S. at 480- 82. The Court held that a state prisoner’s claim f or damages is not cognizable under 42 U.S.C. § 1983 if a judgment in his or her favor “would necessarily imply the invalidity of his conviction or sentence.” Id. at 487. If a judgment in favor of the plaintiff would necessarily invalidate his conv iction or sentence, then the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence already has been invalidated . Id. If the plaintiff cannot do so, then habeas corpus is the exclusive remedy and exhaustion is required. See id. at 481, 487. More recently, the Supreme Court again addressed th e distinction between section 1983 actions and section 2254 petitions. S ee Edwards v. Balisok , 520 U.S. 641, 117 S. Ct. 1584, 1587 (1997) (holding that prisoner’s claim was not cognizable under section 1983 because it necessaril y implied the invalidity of the deprivation of his good-time credits). This decisi on further clarifies the distinction between the two types of suits: When aprisoner seeks to challenge prison conditions or procedures that, if his challe nge were successful, would “necessarily imply the invalidity of the punishmentimposed,” then his claims are not cognizable under 42 U.S.C. § 1983. Id. at 1589 ; see also Preiser , 411 U.S. at-6-

500 (holding that when a state prisoner seeks “a de termination that he is entitled to immediate release or a speedier release . . . , his sole federal remedy is a writ of habeas corpus”); Carson , 112 F.3d at 820-21 (“If ‘a favorable determination . . . would not automatically entitle [the prisoner] to accelerated release,’ the proper vehicle is a § 1983 suit.” (in ternal citations omitted)). Although section 1983 actions generally may be usedto challenge prison conditions and parole procedures, the key question is whether “the nature of the challenge to the procedures [is] such as necessaril y to imply the invalidity of the judgment.” Edwards , 117 S. Ct. at 1587. In accordance with the Supreme Court cases discusse d above, this court also has recognized that the key distinction betwee n the two types of actions is the nature of the relief sought by the prisoner. S ee Herrera v. Harkins , 949 F.2d 1096, 1097-98 (10th Cir. 1991). Where a prisoner c hallenges “a constitutional defect in an individual parole hearing, [and] where the remedy lies in providing a new parole hearing, [the] prisoner must file a habe as petition.” Id. at 1097. By contrast, where the prisoner seeks the benefit of aruling on a constitutional issue that may affect future parole hearings, i.e. “injun ctive or declaratory relief to correct constitutionally defective parole procedure s,” id. at 1097, his action may be filed under section 1983. See id. at 1097-98. In this case, Mr. Berry does not contend “that he i s being unlawfully-7-

subjected to physical restraint,” and he does not s eek “release from such confinement.” Preiser , 411 U.S. at 486. Nor does he seek a hearing to c orrect the outcome of a prior, defective parole hearing. Inst ead, Mr. Berry’s claims focus on the defective parole procedures which he argues violate his substantive due process rights and the Ex Post Facto Clause. Giventhe nature of his claims, Mr. Berry “may not obtain the ‘new Parole Board Hearing ’ he requested from the district court,” but he may “obtain declaratory or injunctive relief regarding parole procedures.” Herrera , 949 F.2d at 1098 (explaining that where a prisone r seeks injunctive or declaratory relief to correct c onstitutionally defective parole procedures under section 1983, “the court does not grant a new parole hearing; rather, in any future parole hearings, the prisonerbenefits from the new constitutionally acceptable procedures.”). The fact that Mr. Berry asked the district court to grant him a parole hearing within three years rather than ten years do es not change our analysis. See Woods v. Keenan , 116 F.3d 490, 1997 WL 345993, at *2 (10th Cir. 19 97) (Table) (“[W]e do not rely upon the plaintiff’s characteriz ation, but, rather, we consider the nature of the relief sought.”). As discussed above, a judgment favorable to Mr. Berry will not automatically provide him with a n immediate hearing, result in his release, or shorten the duration of his sentenc e. At most, an adjudication that the Kansas statute lengthening the time between par ole hearings from three years1 Our holding that Mr. Berry’s claims are cognizable under 42 U.S.C. § 1983

does not necessarily mean that Mr. Berry could not have raised his concerns in a petition for habeas corpus. See Preiser , 411 U.S. at 499 (“This is not to say that habeas corpus may not also be available to challeng e such prison conditions.”); cf. California Dep’t of Corrections v. Morales , 514 U.S. 499, 504 (1995) (addressing section 2254 petition raising ex post f acto challenge to California statute which increased length of time between paro le hearings). -8- to a range of three to ten years violated the Ex Po st Facto Clause would entitle Mr. Berry and similarly situated individuals to the future benefit of more frequent parole hearings. Because this is not a case in whi ch a judgment favorable to Mr. Berry would necessarily imply the invalidity of his conviction, sentence, or parole determination, we hold that Mr. Berry’s action is c ognizable under 42 U.S.C. §
1983. 1 We therefore reverse the district court’s dismiss al without prejudice and remand for further proceedings consistent with this order and judgment. As we stated in Herrera , “[w]e express no opinion on the merits of the complaint or on what relief, if any, would be appro priate.” Herrera , at 1098. We do note that in 1995 the Supreme Court rejected an ex post facto challenge to a California parole statute amendment lengthening the time between parole hearings from one year to up to three years. See Morales , 514 U.S. at 503. In that case, the Court developed the following test: [W]e have long held that the question of what legis lative adjustments “will be held to be of sufficient moment to transgr ess the constitutional prohibition” [against ex post facto laws] mustbe a matter of “degree.” In evaluating the constitution ality of the [California] amendment, we must determine whether i t produces a-9-

sufficient risk of increasing the measure of punish ment attached to the covered crimes. Id. at 509 (internal citation omitted). The Court wen t on to conclude that California’s amendment created only a “speculative and attenuated possibility of producing the prohibited effect of increasing the m easure of punishment for the covered crimes, and such conjectural effects are in sufficient under any threshold we might establish under the Ex Post Facto Clause.” Id. Other factors affecting the Court’s decision included the fact that the ame ndment only affected “a class of prisoners for whom the likelihood of release on parole is quite remote,” id. at 510; it only provided the parole board with authori ty to change the timing of subsequent parole hearings, not of the initial parole hearing, see id. at 511; and the board retained the authority to tailor the freq uency of the subsequent hearings to the individual prisoner. See id. The record in this case is not sufficient to meaningfully measure Mr. Berry’s claims in light of the principles set forth in Morales

.

Finally, because we hold that Petitioner’s claims a re cognizable under 42 U.S.C. § 1983, he does not need a certificate of ap pealability.-10-

REVERSED and REMANDED. Entered for the Court

Monroe G. McKay Circuit Judge