## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 8 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN D. CHESTRA, Plaintiff - Appellant, v. STATE OF KANSAS; SEDGWICK COUNTY, KANSAS; CHRISTIAN ZOLLER, in his individual and official capacity; RON PASCHAL, Assistant District Attorney for Sedgwick County; NOLA FOULSTON, District Attorney for Sedgwick County; GREGORY WALLER, District Judge, 18th Judicial District, Sedgwick County; PAUL CLARK, District Court Judge, 18th Judicial District, Sedgwick County, Defendants - Appellees.

KEVIN D. CHESTRA, Petitioner - Appellant,

v. JAY SHELTON; ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents - Appellees. No. 01-3140 (D.C. No. 01-CV-3022-GTV)

(D. Kan.)

No. 01-3188 (D.C. No. 00-CV-3466-DES)

(D. Kan.)* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. - 2 - ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges. **
Kevin D. Chestra, an inmate appearing pro se, seeks damages for alleged constitutional error in the sentencing in his state criminal proceeding pursuant to 42 U.S.C. § 1983 (No. 01-3140) and a certificate of appealability (“COA”) allowing him to appeal the district court’s order d enying relief on his habeas petition pursuant to 28 U.S.C. § 2254 (No. 01-3188) . We have jurisdiction pursuant to 28 U.S.C. § 1291 over the §1983 action and 28 U.S.C. §§ 1291 and 2253(a) over the § 2254 action. We companion these two appeals for disposition because they are based on similar facts and raise s imilar issues. Given that neither Mr. Chestra’s conviction nor his sentence h as been reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus as required by Heck v. Humphrey , 512 U.S. 477, 489 (1994), we affirm the district court’s- 3 -

dismissal of his § 1983 action. Because Mr. Chestr a has failed to make a “substantial showing of the denial of a constitutio nal right” as required by 28 U.S.C. § 2253(c)(2), we dismiss his § 2254 appeal. Mr. Chestra was convicted of two counts of aggravat ed indecent liberties with a child and one count of criminal threat and w as sentenced to serve consecutively 59 and 57 months for the two counts a nd 7 months for the threat. Doc. 1 at 1-2 (No. 01-3188). His conviction was af firmed on direct appeal. Id. at 4-5. He then sought state post-conviction relief. On December 1, 2000, Mr. Chestra also petitioned the Kansas federal districtcourt for a writ of habeas corpus. Id . On January 17, 2001, Mr. Chestra filed the § 19 83 complaint in the Kansas federal district court. Doc. 1 (No. 01-3140 ). The Kansas Court of Appeals heard Mr. Chestra’s motion for state post-c onviction relief on March 14, 2001, see Doc. 5 at 1 (No. 01-3188), but had not issued a ru ling as of April 18 or April 23 of 2001, when the district court dismissedwithout prejudice the § 1983 complaint, Doc. 7 (No. 01-3140), and the petition f or writ of habeas corpus, respectively, Doc. 3 (No. 01-3188). As to the § 1983 appeal, we agree with the districtcourt that Mr. Chestra has failed to state a cause of action. The Supreme Court has held that “a prisoner ... has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas- 4 -

corpus.” Heck , 512 U.S. at 489. See Parris v. United States , 45 F.3d 383, 384-85 (10th Cir. 1995). Mr. Chestra has made no such sho wing. As to the COA, Mr. Chestra’s appeal is controlled b y § 2254(b) which prohibits the granting of relief unless the petitio ner has fully exhausted state court remedies or demonstrated that such remedies are unavailable or ineffective under the circumstances. See also O’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999); Brown v. Shanks , 185 F.3d 1122, 1124 (10th Cir. 1999). Mr. Chestr a petitioned the federal district court before the state court o f appeals had ruled on his motion for post-conviction relief. He, therefore, failed to fully exhaust his state court remedies and has neither argued nor demonstrated th at such remedies are unavailable or ineffective. Mr. Chestra asserts th at the district court should have granted his motion to stay the proceedings rather t han dismiss without prejudice. We find that the district court did not abuse its d iscretion in dismissing without prejudice rather than staying the proceedings. We AFFIRM the district court’s order dismissing Mr. Chestra’s § 1983 complaint. We also DENY Mr. Chestra’s request for a COA and DISMISS his § 2254 appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge