* This order and judgment is not binding precedent, e xcept under the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

### MAR 3 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DARRYL S. LYONS,

Petitioner-Appellant,

v. L.E. BRUCE, Warden, Kansas Department of Corrections and CHARLES SIMMONS, Secretary of Corrections, Respondents-Appellees. No. 97-3162 (D.C. No. 97-CV-3225) (D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Darryl Lyons appeals the distri ct court’s order construing his civil rights action as a petition fo r a writ of habeas corpus and dismissing the action for failure to exhaust remedi es. As plaintiff has not shown the denial of a constitutional right, we deny his application for a certificate of appealability. We first examine our jurisdiction. Plaintiff filed his initial notice of appeal on May 20, 1997, the same day he filed his complain t. This notice of appeal was clearly premature as the district court had not yetrendered a decision. On May 29, 1997, the district court entered judgment d ismissing plaintiff’s appeal, and on June 6, 1997, plaintiff filed a motion for r ehearing, construed as a motion to alter or amend. On June 30, 1997, plaintiff fil ed an amended notice of appeal. Pursuant to Fed. R. App. P. 4(a)(4), plaintiff’s se cond notice of appeal ripened when the district court denied his motion to alter or amend on August 28, 1997.
See Breeden v. ABF Freight Sys., Inc. , 115 F.3d 749, 752 (10th Cir. 1997). We have jurisdiction, therefore, to consider this appe al. To appeal the district court’s judgment, plaintiff must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1). Such a certificate will i ssue only upon “a substantial showing of the denial of a constitut ional right.” § 2253(c)(2).-3-

Plaintiff has not shown the district court deprivedhim of a constitutional right by construing his § 1983 action as a habeas petition r equiring exhaustion. Plaintiff’s complaint sought to have his indetermin ate sentence converted to a determinate sentence and requested an order for r elease ninety days after his parole hearing and $750.00 in damages for every dayhe is held after that date.
See R. I, doc. 1, at 5. In Preiser v. Rodriguez , 411 U.S. 475, 487-90, 500 (1973), the Supreme Court held a prisoner’s exclusive remedy is a writ of habeas corpus where, as here, he challenges the fact or duration of his imprisonment and seeks a determination that he is eligible for immediate or speedier release from prison. Plaintiff’s request for damages does not change thi s result, as a judgment in his favor would necessarily imply the invalidity of the sentence under which he is being held. See Edwards v. Balisok , 117 S. Ct. 1584, 1588-89 (1997) (holding § 1983 damages claim for use of improper procedures in depriving good-time credits not cognizable as it necessarily implied pu nishment invalid); Heck v. Humphrey , 512 U.S. 477, 486-87 (1994) (holding § 1983 damag es claim not cognizable if judgment in favor of plaintiff would necessarily imply invalidity of conviction or sentence). Plaintiff also has not shown the district court’s f inding of nonexhaustion deprived him of a constitutional right. As a state prisoner, plaintiff was required to exhaust his state remedies before seeking habeas relief from this court. See-4-

28 U.S.C. § 2254(b)(1)(A). Because it is undispute d that he has not done so, the dismissal of plaintiff’s action did not deprive him of any constitutional rights. Plaintiff’s application for a certificate of appeal ability is DENIED. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge