* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### 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, BALDOCKand HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cause is therefore ordered submitted without oral argument.-2-

Mr. Steven Ayala was convicted of domestic violence in two Colorado state cases, one in Adams County, the other in Arapahoe C ounty. In federal district court, he challenged both convictions and his sente nce. 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 hi s certificate. In state court, Mr. Ayala brought suit against the Adams County officials and attorneys in their official and individual capa cities for false arrest, false search warrant, coercion to plea, and conspiracy (c ase 99-1086). Regarding the Arapahoe conviction, Mr. Ayala filed suit against M s. Catherine Roberts, defense counsel, for ineffective assistance of counsel (cas e 99-1083). He also complained of a breach of the plea agreement and inappropriate judicial activism. In federal district court, Mr. Ayala filed suit agains t 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 f or 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 al so 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 un der 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 ha s 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 du ration of a prisoner’s confinement and seeks the remedy of immediate relea se or shorter confinement, whereas civil rights actions under § 1983 attack co nditions 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 exe cution of a sentence, in contrast to § 2254 habeas proceedings, which are us ed 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, itis clear that Mr. Ayala is a state prisoner challenging his conviction and sente nce. His allegations of false arrest, ineffective assistance of counsel, conspira cy, and other misconduct are all-4-

directed at attacking the state judgment of his conviction and releasing him from his sentence. Despite Mr. Ayala’s attempts to dis guise the complaint to circumvent exhaustion requirements, the district co urt did not abuse its discretion in framing the complaints as § 2254 habeas petition s. 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 conv iction or making postconviction attacks in state court as required for a § 2254 hab eas 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 o f 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 appea lability. 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