                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             AUG 6 1997

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 JODY MAPP,

          Plaintiff-Appellant,
                                                       No. 96-8056
 v.                                               (D.C. No. 96-CV-64-J)
                                                          (WY)
 STATE OF WYOMING,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO 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); 10th Cir. R. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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.
          Jody Mapp, a state prisoner appearing pro se, brought an action styled

motion for preliminary injunction pursuant to 42 U.S.C. § 1983. Mr. Mapp

asserted that he was denied the effective assistance of counsel during his state

criminal trial proceedings and requested injunctive relief reversing his conviction.

The matter was referred to a magistrate judge, who characterized the action as a

petition for writ of habeas corpus under 28 U.S.C. § 2254 and recommended

dismissal on the ground that Mr. Mapp had failed to exhaust his state post-

conviction remedies. The district court adopted the magistrate judge’s report and

denied Mr. Mapp a certificate of appealability.

          We turn first to Mr. Mapp’s contention that the lower court erred in

characterizing his action as in the nature of a writ of habeas corpus. Mr. Mapp’s

pleading alleges that his counsel was ineffective and that his conviction must

therefore be set aside. “[W]hen a state prisoner is challenging the very fact or

duration of his physical imprisonment, and the relief he seeks is a determination

that he is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973). Thus the magistrate judge did not err in

concluding that Mr. Mapp’s action was in effect a petition for habeas corpus

relief.




                                            -2-
      We do not agree, however, with the district court’s holding that Mr. Mapp’s

action must be dismissed because of his failure to exhaust state post-conviction

remedies. The Supreme Court has held that a petitioner need not seek state post-

conviction relief before filing a petition for a federal writ of habeas corpus when

the state court has had the opportunity to rule on the substance of the federal

claim. “[O]nce the state courts have ruled upon a claim, it is not necessary for a

petitioner ‘to ask the state for collateral relief, based upon the same evidence and

issues already decided by direct review.’” Castille v. Peoples, 489 U.S. 346, 350

(1989) (quoting Brown v. Allen, 344 U.S. 443, 448-49 n.3 (1953)). Accordingly,

Mr. Mapp does not have to seek state post-conviction relief in order to satisfy

federal habeas exhaustion requirements if he has presented the claim to the state

court on direct appeal. Moreover, the Wyoming Supreme Court has held that “[a]

defendant cannot raise the issue of ineffective assistance of his trial counsel for

the first time in a post-conviction proceeding because that issue could have been

raised in the direct appeal.” Smizer v. State, 835 P.2d 334, 337 (Wyo. 1992).

Thus if Mr. Mapp has not presented his claim of ineffective assistance on direct

appeal, he is barred under state law from raising it in state post-conviction

proceedings. The claim would be considered exhausted under those

circumstances as well, see Wallace v. Cody, 951 F.2d 1170 (10th Cir. 1991)

(exhaustion does not require resort to futile state procedure), although his claim


                                         -3-
might then be subject to a procedural bar, see Coleman v. Thompson, 501 U.S.

722 (1991). It is thus clear that the magistrate judge’s recommendation, upon

which the district court order of dismissal is based, was incorrect. 1

      The record in this case does not reveal whether Mr. Mapp has exhausted his

ineffective assistance claim, presumably because Mr. Mapp, who is pro se,

believed and continues to assert that his action is a section 1983 action, not one

for habeas corpus relief. Under these circumstances, and in view of the fact that

the basis upon which the action was dismissed was incorrect, Mr. Mapp should be

given the opportunity on remand to show that the substance of the federal claim

was presented to the state court or that such presentation would be futile.

      Given Mr. Mapp’s assertion that his right to the effective assistance of

counsel was violated, and our conclusion that the district court erred in dismissing

his petition for failure to exhaust state post-conviction remedies, we conclude that

the question presented is deserving of further proceedings. Accordingly, we grant

Mr. Mapp a certificate of appealability. See 28 U.S.C. § 2253(c)(2) (1994);




      1
         As an independent ground for dismissal, the district court found and
concluded that Mr. Mapp had not met the requirements for the issuance of an
injunction under Fed. R. Civ. P. 65(b). Since we agree that this action was
properly characterized as one for habeas corpus relief, the requirements for
injunctive relief are therefore inapplicable.

                                          -4-
Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996). We also grant his motion for

leave to proceed informa pauperis.

      REVERSED and REMANDED for further proceedings.

                                             ENTERED FOR THE COURT



                                             Stephanie K. Seymour
                                             Chief Judge




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