                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 4 1998
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 HENRY LEE McCONE,

           Plaintiff - Appellant,
 vs.                                                     No. 97-8118
                                                   (D.C. No. 97-CV-142-D)
 WYOMING ATTORNEY GENERAL;                                (D. Wyo.)
 JUDIE L. CHITWOOD; JUDY
 UPHOFF,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


       Plaintiff-Appellant Henry Lee McCone appeals from the district court’s

dismissal, without prejudice, of his 42 U.S.C. §1983 claim seeking damages and

alleging violation of his constitutional rights by state officers during proceedings

to revoke his parole. Our jurisdiction arises under 28 U.S.C. § 1291, and we


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
affirm. The district court was correct in determining that Heck v. Humphrey, 512

U.S. 477 (1994), bars the present action absent a determination that the parole

revocation was invalid. See White v. Gittens, 121 F.3d 803, 807 (1st Cir. 1997);

Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996). Likewise, the district court

was correct in holding that, even if the complaint was construed as a habeas

corpus petition, Mr. McCone had failed to exhaust state court remedies. See 28

U.S.C. § 2254(b)(1)(A); see also Demarest v. Price, 130 F.3d 922, 932 (10th Cir.

1997).

         AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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