*After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### FEB 5 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN GONZALES, Petitioner - Appellant,

v. WARDEN, El Dorado Correctional Facility; ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents - Appellees. No. 02-3309 D.C. No. 01-CV-3381-DES (D. Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
Stephen Gonzales filed a habeas corpus petition all eging that his good time credits were revoked in violation of the ex post fa cto clause, and that he had been denied access to a prison law library. Mr. Gonzale s characterized his petition as-2-

filed pursuant to § 2254 but the district court correctly treated it, in part, as filed under § 2241 to the extent it challenged the execut ion of his sentence. See Montez v. McKinna , 208 F.3d 862 (10th Cir. 2000). The court noted that Mr. Gonzales’ complaint about access to a law library i s a § 1983 claim. The district court dismissed the habeas claim for Mr. Gonzales’ failure to exhaust his remedies in state court, and dismissed the § 1983 c laim as inappropriately brought in a habeas action. We agree with the district court’s analysis and therefore deny the request for a certificate of appealability and dismiss the appeal. This case was originally referred to a magistrate j udge, who ordered Mr. Gonzales to show cause why the case should not be d ismissed for failure to exhaust his state remedies before pursuing his habe as petition in federal court. At the same time, the magistrate judge advised Mr. Gon zales that the second half of his claim would have to be brought in a § 1983 acti on, rather than as a habeas petition, and only after exhaustion of his prison a dministrative remedies. In response to the show cause order, Mr. Gonzales argu ed that he believed it would be futile to pursue his state court remedies becaus e a prison legal advisor had advised him that he was not entitled to relief. The magistrate judge recommended, and the district court agreed, that the case should be dismissed for failure to exhaust, an d that Mr. Gonzales was mistaken in believing the advice from the prison le gal advisor was sufficient to1 Because the district court did not act on Mr. Gonz ales’ request for a COA,

it is deemed denied by that court. Pursuant to Fed eral Rule of Appellate Procedure 22(b), however, Mr. Gonzales’ notice of appeal is deemed a renewed application to this court for a COA. -3- demonstrate the futility of pursuing his claims fir st in state court. It also noted that the denial of access claim was not cognizable in a habeas corpus petition. The district court agreed and dismissed the petitio n. The court stated, “Petitioner’s attempt to equate prison administrati ve remedies with the remedies afforded in the state courts through a state habeas corpus petition is misguided, and provides no support for his claim that exhausti on of state court remedies was ineffective or unavailable under the circumstances. ” Rec., doc. 13 at 1-2. Under Montez v. McKinna , a state prisoner bringing a § 2241 claim must be granted a certificate of appealability (COA) prior to being heard on the merits of the appeal. See 208 F.3d at 867. 1 A court may issue a COA “only if the applicant has made a substantial showing of the denial of a c onstitutional right,” 28 U.S.C. § 2253(c)(2). Because Mr. Gonzales must first rais e his claim regarding good time credit in state court, which he has not done, he does not meet the test for the grant of a COA. To the extent Mr. Gonzales attempts to raise his cl aim regarding denial of access to a law library, we agree with the districtcourt that he must file a § 1983 action and establish that he has exhausted his pris on administrative remedies.-4-

Accordingly, we DENY Mr. Gonzales’ application for a COA and DISMISS this appeal. ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge