*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 15 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN AYALA,

Petitioner-Appellant,

v.

A. ZAVARAS and ATTORNEY

GENERAL FOR THE STATE OF

COLORADO,

Respondents-Appellees.

Nos. 99-1083, 99-1086

(D.C. Nos. 98–Z-2614 and 98-Z-2461)

(Dist. Colorado)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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 cause is

therefore ordered submitted without oral argument.
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Mr. Steven Ayala was convicted of domestic violence in two Colorado state

cases, one in Adams County, the other in Arapahoe County. In federal district

court, he challenged both convictions and his sentence. The district court denied

both challenges for failure to exhaust under 28 U.S.C. § 2254. Mr. Ayala appeals,

files a petition for mandamus and applies for a certificate of appealability. We

dismiss this appeal, deny his petition, and deny his certificate.

In state court, Mr. Ayala brought suit against the Adams County officials

and attorneys in their official and individual capacities for false arrest, false

search warrant, coercion to plea, and conspiracy (case 99-1086). Regarding the

Arapahoe conviction, Mr. Ayala filed suit against Ms. Catherine Roberts, defense

counsel, for ineffective assistance of counsel (case 99-1083). He also complained

of a breach of the plea agreement and inappropriate judicial activism. In

federal district court, Mr. Ayala filed suit against Mr. Zavaras, executive director

of the Colorado Department of Corrections, and the state attorney general. But

Mr. Ayala lobbed the same state claims against the same state parties. The

district court framed the complaints as petitions for habeas corpus under § 2254

and denied them for lack of exhaustion at the state level. On appeal, Mr. Ayala

argues that he has exhausted state remedies. He also submits a “petition in the

nature of mandamus” requesting this court to order the district court to hear and

decide his underlying Arapahoe complaint as a civil rights complaint under §
-3-

1983 and his Adams County complaint as an action under 28 U.S.C. § 2241, both

not statutorily subject to the § 2254 requirements.

We first address his petition for mandamus. Mandamus “is a drastic

[remedy], to be invoked only in extraordinary situations, and will issue only in

those exceptional cases where the inferior court has acted wholly without

jurisdiction or so clearly abused its discretion as to constitute a judicial

usurpation of power.” See Kaiser Steel Corp. v. Frates, 911 F.2d 380, 387-88

(10th Cir. 1990) (citation omitted). 

In general terms, habeas corpus attacks facts or duration of a prisoner’s

confinement and seeks the remedy of immediate release or shorter confinement,

whereas civil rights actions under § 1983 attack conditions of a prisoner’s

confinement and request remedies other than release or shortened confinement. 

See id. at 812 (quoting Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir.1993)). 

Section 2241 proceedings are used to attack the execution of a sentence, in

contrast to § 2254 habeas proceedings, which are used to collaterally attack the

validity of a conviction and sentence. See McIntosh v. United States Parole

Commission, 115 F.3d 809, 812 (10th Cir. 1997). 

In the instant case, after reviewing the record, it is clear that Mr. Ayala is a

state prisoner challenging his conviction and sentence. His allegations of false

arrest, ineffective assistance of counsel, conspiracy, and other misconduct are all
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directed at attacking the state judgment of his conviction and releasing him from

his sentence. Despite Mr. Ayala’s attempts to disguise the complaint to

circumvent exhaustion requirements, the district court did not abuse its discretion

in framing the complaints as § 2254 habeas petitions. We DENY a writ of

mandamus.

Moreover, we agree with the district court that Mr. Ayala did not exhaust

his state remedies by directly challenging his conviction or making postconviction

attacks in state court as required for a § 2254 habeas corpus petition. See Dever

v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Rather, in

state court, he made a series of unsuccessful civil rights complaints. Accordingly,

having failed to fulfill the § 2254 pre-requisite of exhaustion, Mr. Ayala has

failed to make “a substantial showing of the denial of a constitutional right” as

required for the issuance of a certificate of appealability. 28 U.S.C. § 2253(c)(2). 

We DENY a certificate of appealability and DISMISS this appeal. We DENY

his motion to proceed in forma pauperis. 

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge