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

                                                                           June 27, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                      PATRICK FISHER
                                                                                Clerk



DAVID WAYNE HAGIN,

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

          Respondents-Appellees.




                             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 be brought in a




      *
       This order and judgment is not binding precedent, except under the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.
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 attempted manufacture of

methamphetamine and was sentenced to twenty years’ imprisonment. More than

two years after his conviction became final, Hagin filed an application for post-

conviction relief in state court. After the state court denied the relief, the

Oklahoma Court of Criminal Appeals affirmed. Hagen thereafter filed the instant

Application pursuant to 28 U.S.C. § 1651(a). In the Application, Hagin attacks

his state court conviction on the grounds that he was denied his Sixth Amendment

right to the effective assistance of counsel. In particular, Hagin asserts that his

trial counsel was operating under a conflict of interest 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 he sought state post-conviction

relief.

          The district court concluded that it lacked jurisdiction over Hagin’s

Application because claims such as those asserted in the Application must be

brought in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The district court refused to construe the Application as a petition for habeas

corpus because (1) Hagin had specifically disavowed such an interpretation; and

(2) even if construed as a habeas petition, the action would be time-barred under


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the limitations period set out in the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”).

      Upon review of the magistrate judge’s report and recommendation, the

district court’s orders, Hagin’s appellate filings, and the entire record on appeal,

this court affirms the district court for substantially 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 that because Hagin seeks to set aside

his state court conviction, his sole remedy lies in a habeas corpus petition.

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when state prisoner

challenges fact or duration of imprisonment and seeks release from that

imprisonment, sole federal remedy is a writ of habeas corpus); see also

Pennsylvania Bureau of Corr. v. United States Marshals 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.”). Likewise, 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 Application as a habeas petition.




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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




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