                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 16 1999
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


ROBERT D. BENTLEY,

          Petitioner-Appellant,
                                                       No. 99-3163
v.
                                                    (District of Kansas)
                                                  (D.C. No. 99-CV-3133)
KANSAS SECRETARY OF
CORRECTIONS,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
      Robert Bentley, proceeding pro se and in forma pauperis, seeks a

certificate of appealability (“COA”) so that he can appeal the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. §

2253(c)(1)(a). Because Bentley has not made a “substantial showing of the denial

of a constitutional right,” id. § 2253(c)(2), this court denies him a COA and

dismisses this appeal.

      In his habeas petition, Bentley asserted that he was being improperly denied

access to Kansas legal resources and the Kansas courts and was thereby denied

any opportunity to challenge his 1977 Kansas conviction for second degree

murder. Although Bentley had been tried and convicted in Kansas, he is currently

serving his sentence in an Arizona prison pursuant to an inmate transfer

agreement between Kansas and Arizona. According to Bentley, the Arizona

prison is completely lacking in Kansas legal materials.

      The district court dismissed Bentley’s § 2254 petition without prejudice on

the grounds that Bentley’s claims relate to the conditions of, rather than to the

fact or duration of, his confinement and, therefore, must be brought in a 42 U.S.C.

§ 1983 civil rights complaint. See Berry v. Scafe, No. 98-3194, 1999 WL 89152,

at *2-*3 (10 th Cir. Feb. 23, 1999) (discussing distinction between § 2254 habeas

petitions and § 1983 civil rights complaints and noting that they are not

interchangeable). The district court further noted Bentley had raised this identical


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claim in a prior § 2254 petition and that the earlier petition had also been

dismissed without prejudice on the grounds that the claims must be brought

pursuant to § 1983.

      Upon de novo review of Bentley’s application for a COA and appellate

brief, the district court order of dismissal, and the entire record on appeal, this

court concludes that the district court’s resolution of this case is not debatable

among jurists of reason, subject to a different resolution on appeal, or deserving

of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4. (1983).

Accordingly, we DENY Bentley’s request for a COA for substantially those

reasons set forth in the district court’s order dated May 17, 1999, and DISMISS

the appeal.

                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




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