*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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 

### MAY 12 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GALINO LOPEZ, Plaintiff-Appellant,

v. CAPTAIN MAXWELL; JOHNNY THOMPSON; RONALD J. CHAMPION, Defendants-Appellants. No. 97-5153 (D.C. No. 95-CV-907-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY , and BRISCOE , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Galino Lopez, a state prisoner appearing pro se , appeals the district court's order dismissing his petition for writ of h abeas corpus, and the district court's denial of Mr. Lopez' subsequent motion, sty led alternatively as a motion to "amend/alter judgment" or notice of intent to appea l and motion for a "certificate of appeal" We deny Mr. Lopez a certificate of prob able cause and dismiss the appeal.

On September 12, 1995, Mr. Lopez, an Oklahoma state prisoner, filed a pro

se civil rights action pursuant to 42 U.S.C. § 1983 a gainst Oklahoma prison officials in the United States District Court for the Northern District of Oklahoma. The gravamen of Mr. Lopez complaint was that his due process rights were violated in a prison disciplinary proceeding, resulting in the loss of 120 earned credits and thirty days of disciplinary segr egation. By way of relief, Mr. Lopez asked the district court to order the Oklahom a Department of Corrections to expunge his alleged misconduct, effectively rest oring his earned credits and shortening his term of confinement.

Because Mr. Lopez' request for relief, in essence, challenged the length or duration of his confinement, the district court con strued his § 1983 complaint as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v.-3-

Rodriguez , 411 U.S. 475, 487-90 (1973) (holding that when a state prisoner, though asserting jurisdiction under § 1983, is chal lenging the duration of his confinement, and the relief sought is a determinati on he is entitled to speedier release from confinement, his sole federal remedy i s a writ of habeas corpus);
Duncan v. Gunter , 15 F.3d 989, 991 (10th Cir. 1994) (same). A pris oner seeking federal habeas relief, however, is first required t o exhaust state remedies unless it would be futile to do so. 28 U.S.C. § 2254(b)(1); Duncan , 15 F.3d at 991. Failure to comply with relevant exhaustion requirem ents warrants immediate dismissal of a premature federal habeas claim. See Rose v. Lundy , 455 U.S. 509, 522 (1982) (requiring total exhaustion of claims instate forum).

Based on its reading of controlling Oklahoma law, see Canady v. Reynolds , 880 P.2d 391 (Okla. Crim. App. 1994), the district court concluded requiring Mr. Lopez to exhaust his state remedies regarding resto ration of earned credits would be futile. Consequently, the district court procee ded to the merits of Mr. Lopez' petition. The district court was convinced Mr. Lop ez' due process rights were violated in the prison disciplinary proceeding, butin light of the court's conversion of the § 1983 complaint into a § 2254 pe tition, the district court granted the defendants an opportunity to show cause why the writ of habeas corpus, vacating the finding of the disciplinary he aring and directing the-4-

reinstatement of Mr. Lopez' 120 earned credits, sho uld not issue.

The defendants filed a response to the district court's show cause order in which they argued Mr. Lopez had a viable state reme dy for seeking restoration of his earned credits. The district court had read Canady as holding "that mandamus is generally unavailable in cases concerning calcul ation of earned credits, and that a [state] writ of habeas corpus is available only t o those prisoners who are entitled to immediate release if a writ were granted," a con dition Mr. Lopez did not satisfy. See Canady , 880 P.2d at 397 (discussing language suggesting the writ of mandamus may be inappropriate remedy for challengin g decisions regarding the number of earned credits lost or restored). The de fendants, however, persuasively argued the Canady decision does provide that an inmate who, like Mr. Lopez, is not asserting that he is entitled to immediate rele ase may receive a "due process review" of his prison disciplinary proceeding throu gh a state writ of mandamus. See id . at 396, 401; see also Johnson v. Department of Corrections , 916 P.2d 264, 265 (Okla. Crim. App. 1996) (noting a "writ of mand amus is appropriate against prison officials when a prisoner's minimum due proc ess rights [with regard to sentence credits] have been violated"). Therefore, the defendants argued, Canady did not strip Mr. Lopez of all available state reme dies and the exhaustion requirements should be applied.-5-

After reviewing the defendants' response and the ap plicable Oklahoma law, the district court found a state remedy in the formof a writ of mandamus was available to Mr. Lopez. Thus, notwithstanding its determination that Mr. Lopez was not afforded due process at his disciplinary he aring, the district court concluded the "case must be dismissed without preju dice to allow [Mr. Lopez] to petition the state courts for a writ of mandamus." See Coleman v. Thompson , 501 U.S. 722, 731 (1991) (noting longstanding rule that"a state prisoner's federal habeas petition should be dismissed if the prisonerhas not exhausted available state remedies as to any of his claims").

Subsequently, Mr. Lopez filed a motion to "Amend/Al ter Judgment" pursuant to Fed. R. Civ. P. 59(e) or, in the altern ative, notice of intent to appeal and motion for "certificate of appeal." The defend ants filed a response to Mr. Lopez' Rule 59(e) motion, urging that the relief re quested be denied. The district court denied Mr. Lopez's Rule 59(e) motion, constru ed his pleadings as a notice of appeal, and denied Mr. Lopez a certificate of ap pealability.

We construe Mr. Lopez' motion as a request for a ce rtificate of probable1 Because the district court converted Mr. Lopez' § 1983 action into a

petition for writ of habeas corpus, we look to the filing date of the original complaint for purposes of determining whether Mr. L opez is required to apply for a certificate of appealability. The Antiterrorism and Effective Death Penalty Act of 1996 amendments to 18 U.S.C. § 2253, which impos e the requirement of a certificate of appealability, do not apply to cases filed prior to the statute's effective date, April 24, 1996. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997); United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998). Mr. Lopez' original § 19 83 complaint was filed September 12, 1995; therefore, he is not requ ired to obtain a certificate of appealability. Accordingly, we construe Mr. Lopez' motion as a request for a certificate of probable cause. See 28 U.S.C. § 2253 (1994) (amended 1996).

-6- cause to appeal. 1 In order to obtain a certificate of probable caus e, a habeas petitioner is required "to make 'a substantial show ing of the denial of [a] federal right.'" Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (citations omitted) (alteration in the original). To obtain a certific ate of probable cause, Mr. Lopez must show the issues presented are debatable among jurists of reason, a court could resolve the issues differently, or the questi ons deserve further proceedings. See id . at 893 n.4.

Mr. Lopez raises two issues on appeal. First, he c ontends there is no state remedy. While Oklahoma law in the area of earned c redits may be somewhat confusing, see Canady 880 P.2d at 396, especially to pro se litigants, it is now clear Mr. Lopez has a state remedy. Mr. Lopez can seek a due process review of the disciplinary hearing and subsequent revocation of his good time credits-7-

through a state writ of mandamus, "regardless of wh ether he would be entitled to immediate release if the credits were restored." Id . at 396; see also Johnson , 916 P.2d at 265 (noting prospect of immediate release i s not required for due process review through writ of mandamus). Therefore, as a matter of law, we are unable to consider his habeas petition until he exhausts his state court remedies. Heck v. Humphrey , 512 U.S. 477, 480-81 (1994).

Second, Mr. Lopez urges that his § 1983 "civil rights action remains viable regardless of the disposition of the habeas corpus action." In Heck , the Supreme Court held that a state prisoner's claim for damage s is not cognizable under § 1983 if "a judgment in favor of the plaintiff wouldnecessarily imply the invalidity of his conviction or sentence" unless th e plaintiff can prove his "conviction or sentence has been reversed on directappeal, expunged by executive order, declared invalid by a state tribun al authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." 512 U.S. at 486-87. The Court recently extended the Heck analysis to the denial of good time credits in the prison disciplinary hearing setting. See Edwards v. Balisok , 117 S. Ct. 1584, 1589 (1997). Mr. Lopez argues he can seek damages in a § 1983 action because his alleged "misconduct" has been "invalidated." Assuming, arguendo, that Mr. Lopez has properly raised a-8-

damages claim, he misapprehends the force of the di strict court's action on his habeas petition. The district court did not grant Mr. Lopez a writ of habeas corpus; ultimately, the petition was dismissed unde r the exhaustion doctrine. Contrary to Mr. Lopez' assertion, the findings in h is disciplinary hearing have never been "invalidated" by issuance of a writ of h abeas corpus. Therefore, his claim for damages is not cognizable under § 1983. See Heck , 512 U.S. at 487; Edwards , 117 S. Ct. at 1589.

Mr. Lopez has failed to make the required showing o f the denial of a federal constitutional right. Accordingly, his request for a certificate of probable cause is DENIED and the appeal is DISMISSED

.

Entered for the Court WADE BRORBY United States Circuit Judge