                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 12 2001
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 JEFFREY R. MULBERRY,

           Petitioner - Appellant,
 vs.                                                     No. 00-1477
                                                     (D.C. No. 00-Z-1970)
 GARY NEET and ATTORNEY                                    (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Jeffrey Mulberry, an inmate appearing pro se, appeals from the denial of his

habeas petition challenging the execution of his sentence. Although Mr. Mulberry

proceeded under 28 U.S.C. § 2254, we have held that a challenge to execution of

state sentence arises under 28 U.S.C. § 2241 See Montez v. McKinna, 208 F.3d


       *
        This order and judgment is not binding precedent, except under the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 (G). The cause is therefore ordered submitted without oral argument.
862, 865 (10th Cir. 2000). He contends that he is entitled to immediate release,

but that the Colorado Department of Corrections (“CDOC”) will not credit him

with presentence confinement as envisioned by the various state district courts in

which he was sentenced. The federal district court dismissed the petition without

prejudice for failure to exhaust state court remedies. R. Doc. 5 at 4. In his

petition, Mr. Mulberry indicates that he first presented this claim to the El Paso

County District Court in seeking a writ of habeas corpus but that the court

“[n]ever responded and lost record, and pleadings.” R. Doc. 2 at 3. He also

alleges that he unsuccessfully sought a writ of habeas corpus directly from the

Colorado Supreme Court. Id.

      Plainly, Mr. Mulberry has not demonstrated exhaustion, which he is

required to do under § 2241. Montez, 208 F.3d at 866. In Colorado, habeas

corpus is a limited remedy, and a petitioner must first exhaust his legal remedies,

beginning in the district court. Murray v. Henderson, 964 P.2d 531, 533 (Colo.

1998); Duran v. Price, 868 P.2d 375, 377 (Colo. 1994). Here, Colo. Crim. P. 35

(c) provides a legal remedy for Mr. Mulberry’s claim that his sentence has been

fully served or that he is entitled to more immediate discharge.

      Mr. Mulberry is also mistaken that he exhausted state court remedies by

seeking a writ of habeas corpus directly (original jurisdiction) from the Colorado

Supreme Court. We agree with the state that “[u]sing a state procedure that is


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discretionary and limited in scope is not fair presentation” to the state courts, as

required to exhaust state remedies. Aplee. Br. at 10; see also Castille v. Peoples,

489 U.S. 346, 351 (1989); Parkhurst v. Shillinger, 128 F.3d 1366, 1369 (10th Cir.

1997). The mere fact that the Colorado Supreme Court exercised its discretion to

deny the petition in a formulary order does not mean that the court passed on the

merits. Meredith v. Zavaras, 954 P.2d 597, 600 n.5 (Colo. 1998). We recognize

that the Colorado Supreme Court has exercised its mandamus jurisdiction in the

past to require the CDOC to comply with state district court orders concerning

sentencing, but it has done so after the district court passed on the underlying

issues. People v. Grangruth, 990 P.2d 697, 699-700 (Colo. 1999) (presentence

confinement credit); Meredith, 954 P.2d at 598-600 (same); see also Bullard v.

Dep’t of Corrections, 949 P.2d 999, 1000 (Colo. 1997) (discharge order). Those

cases are distinguishable not only because they involve mandamus jurisdiction,

but also because here the state district courts have not passed on Mr. Mulberry’s

claims.

      We DENY the motion to proceed in forma pauperis, DENY a certificate of

appealability, see Slack v. McDaniel, 529 U.S. 473, 482 (2000), and DISMISS the

appeal.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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