* This order and judgment is not binding precedent, e xcept under the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

** Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designati on.

UNITED STATES COURT OF APPEALS Filed 12/19/96 FOR THE TENTH CIRCUIT

CLARENCE FERGUSON,

Plaintiff-Appellant, and THADDEUS JONES, LESLIE KEITH KIMBALL, CLETIS O’QUINN,

Plaintiffs,

v. JOAN FINNEY, Governor, State of Kansas; BILL GRAVES, Current Governor of Kansas,

Defendants-Appellees. No. 95-3379 (D.C. No. 95-3401) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO, ALARCON, ** and LUCERO, Circuit Judges.1 Mr. Ferguson is the only one of the four plaintiffs originally filing this case

who is properly before this court on appeal. -2- 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Clarence Ferguson, along with three other inmates at the El Dorado Correctional Facility in El Dorado, Kansa s, filed a civil rights complaint pursuant to 42 U.S.C § 1983. 1 In their complaint, plaintiffs alleged that, as minority defendants sentenced before July 1, 1993, they were sentenced under a Kansas sentencing system which discriminate d against them due to race. Plaintiffs sought declaratory relief and damages, s tating that they were basing their case on discrimination alone and were not att acking the fact or duration of confinement. The district court, however, construe d their complaint as challenging the constitutionality of their sentence s under 28 U.S.C. § 2254 and dismissed the action for failure to exhaust state r emedies. At the time Mr. Ferguson filed this appeal, the rig ht to appeal the district court’s denial of habeas corpus relief was predicat ed on the grant of a certificate of probable cause. 28 U.S.C. § 2253. On April 24, 1996, Congress enacted the-3-

Antiterrorism and Effective Death Penalty Act of 19 96 (the Act), Pub.L. No. 104- 132, 110 Stat. 1214, which alters the procedures fo r habeas corpus appeals. Section 102 of the Act requires that a prisoner see king appeal of the denial of habeas corpus relief obtain a certificate of appeal ability instead of a certificate of probable cause. Under the Act, “a certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 102 ( to be codified at 28 U.S.C. § 2253(c)(2)). Because the standards for obtaining a certificate of appealabil ity are the same as the previous standards for obtaining a certificate of probable c ause, we apply the amended statute to pending cases. Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996). Mr. Ferguson, although seeking damages and declarat ory relief under § 1983, essentially challenges the constitutionality of his state court sentence. In its recent decision in Heck v. Humphrey , 114 S. Ct. 2364 (1994), the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by action s whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentenc e has been reversed on direct appeal, expunged by executive order, decl ared invalid by a state tribunal authorized to make such determinatio n, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that re lationship to a conviction or sentence that has not been so invalid ated is not cognizable under § 1983.2 Because of our decision in this case, we need not a ddress whether § 101 of

the Act, which establishes a one-year statute of li mitations for § 2254 petitions is applicable here. -4- Id. at 2372 (footnote omitted); accordParris v. United States , 45 F.3d 383, 384-85 (10th Cir.), cert. denied , 115 S. Ct. 1984 (1995). Because Mr. Ferguson cou ld not establish that his sentence had been previously inv alidated, his complaint would not be cognizable under § 1983. Therefore,we concl ude that the district court did not err in construing the complaint as a petition f or writ of habeas corpus and dismissing for failure to exhaust state remedies. See 28 U.S.C. § 2254. Mr. Ferguson, having failed to make the necessary “ showing of the denial of a constitutional right,” is not entitled to a ce rtificate of appealability. 2Mr. Ferguson’s application for a certificate of appealability is DENIED, and his appeal is DISMISSED. Mr. Ferguson’s motion to appo int counsel, “Emergency Act for Injunction,” “Supplemental Issue in Order f or Mandatory Injunction Fed. R. #65,” and “Motion for Summary Judgment” are DENI ED. The mandate shall issue forthwith. Entered for the Court

John C. Porfilio Circuit Judge