* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### June 27, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID WAYNE HAGIN, Petitioner-Appellant,

v. STATE OF OKLAHOMA; STEPHENS COUNTY, Respondents-Appellees. No. 05-6031 (Western District of Oklahoma) (D.C. No. 04-CV-1510-M)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
David Wayne Hagin, proceeding pro se , appeals the district court’s dismissal of his “Application for Writ of Error 28 U.S.C. § 1651(a).” The district court dismissed Hagin’s Application on the basis of lack of subject matter jurisdiction, concluding that Hagin’s claims must b e brought in a-2-

28 U.S.C. § 2254 habeas corpus petition. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms

. Hagin was convicted in Oklahoma state court of atte mpted manufacture of methamphetamine and was sentenced to twenty years’ imprisonment. More than two years after his conviction became final, Hagin filed an application for postconviction relief in state court. After the state court denied the relief, the Oklahoma Court of Criminal Appeals affirmed. Hagenthereafter filed the instant Application pursuant to 28 U.S.C. § 1651(a). In th e Application, Hagin attacks his state court conviction on the grounds that he w as denied his Sixth Amendment right to the effective assistance of counsel. In p articular, Hagin asserts that his trial counsel was operating under a conflict of int erest and refused to adequately present his defense. Hagin also contends that the state courts erred in failing to conduct an evidentiary hearing on his claims when h e sought state post-conviction relief. The district court concluded that it lacked jurisdi ction over Hagin’s Application because claims such as those asserted i n the Application must be brought in a petition for a writ of habeas corpus p ursuant to 28 U.S.C. § 2254. The district court refused to construe the Applicat ion as a petition for habeas corpus because (1) Hagin had specifically disavowedsuch an interpretation; and (2) even if construed as a habeas petition, the act ion would be time-barred under-3-

the limitations period set out in the Antiterrorismand Effective Death Penalty Act of 1996 (“AEDPA”). Upon review of the magistrate judge’s report and re commendation, the district court’s orders, Hagin’s appellate filings, and the entire record on appeal, this court affirms the district court for substanti ally those reasons set out in the report and recommendation dated November 24, 2004, and district court order dated January 8, 2005. It is absolutely clear thatbecause Hagin seeks to set aside his state court conviction, his sole remedy lies ina habeas corpus petition. Preiser v. Rodriguez , 411 U.S. 475, 500 (1973) (holding that when state prisoner challenges fact or duration of imprisonment and see ks release from that imprisonment, sole federal remedy is a writ of habe as corpus); see also Pennsylvania Bureau of Corr. v. United States Marsh als Serv. , 474 U.S. 34, 43 (1985) (“The All Writs Act [contained in 28 U.S.C. § 1651] is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.”). Lik ewise, in light of Hagin’s specific statement that he did not want to proceed pursuant to § 2254 and the futility of construing the Application as arising under § 2254, the district court did not abuse its discretion in refusing to construe the Ap plication as a habeas petition.-4-

For those reasons set out above, the United States District Court for the Western District of Oklahoma is hereby AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge