* This order and judgment is not binding precedent, e xcept under the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

1 After examining the briefs and appellate record, th is panel has determined (continued...) 

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

### JAN 30 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KENNETH E. SHAW,

Plaintiff-Appellant,

v. CHUCK SIMMONS; KANSAS DEPARTMENT OF CORRECTIONS; KANSAS PAROLE BOARD,

Defendants-Appellees. No. 97-3113 (D.C. No. 96-3235-GTV) (D. Kan.)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , andLUCERO , Circuit Judges.

Appellant, a prisoner in custody in the Kansas stat e system, appears pro se and in forma pauperis, and appeals the district cou rt’s dismissal, without prejudice, of his civil rights complaint. 1 Shaw claims that the Kansas Department1 (...continued)

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 Shaw satisfied § 2254's “in custody” requirement atthe time he filed his action, and it was not defeated by his release prio r to completion of the proceedings. See Carafas v. LaVallee , 391 U.S. 234, 238 (1968). -2- of Corrections incorrectly computed his prison sent ence and enhanced his parole eligibility date. His complaint is entitled as a 4 2 U.S.C. § 1983 action and he seeks monetary damages; however, his complaint also requests the court to allow his complaint to be filed as a habeas corpus petition on the same issues. See Richards v. Bellmon , 941 F.2d 1015, 1018 n. 3 (10th Cir. 1991) (“A sin gle complaint may seek relief partly under 28 U.S.C. § 2254 and partly under § 1983.”). Shaw was in custody at the time he file d his complaint; however, during the pendency of this appeal, his sentence expired and he is no longer in prison. 2 We agree with the district court’s conclusion that Shaw essentially sought relief which challenges “the fact or duration of hi s confinement and seeks immediate or speedier release.” Heck v. Humphrey , 512 U.S. 477, 481 (1994). Therefore, we agree with the district court that habeas corpus is Shaw’s exclusive remedy, id .; and that Shaw would not be entitled to any monet ary relief until such time as it was determined he had been unconstitutio nally confined, id. at 486.-3-

We also agree with the district court’s conclusion, that, to the extent Shaw also sought habeas corpus relief, he failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b) and (c) and Rose v. Lundy , 455 U.S. 509, 515 (1982). The record demonstrates that Shaw raised h is sentencing issue before the Kansas Court of Appeals, which remanded to the sentencing court for further action. See Shaw v. Nelson , No. 73,357 (Kan. Ct. App. Oct. 27, 1995) (unpublished memorandum opinion). The sentencing c ourt clarified Shaw’s sentence by order dated March 14, 1996. There is no evidence in the record that Shaw appealed the sentencing court’s 1996 order. S haw’s failure to perfect an appeal is a procedural default which cannot be chal lenged under federal habeas except under a cause and prejudice standard or fund amental miscarriage of justice, see Coleman v. Thompson , 501 U.S. 722, 750 (1991), neither of which is alleged or shown here. The judgment is AFFIRMED for substantially the reas ons set forth in the district court’s order dated April 18, 1997. The m andate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge