                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          NOV 1 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 JOSEPH L. ANDERSON,

          Plaintiff-Appellant,

 v.

 LOUIS E. BRUCE, Warden,
 Hutchinson Correctional Facility;
 WILLIAM E. CUMMINGS, Secretary
                                                       No. 01-3210
 of Corrections designee; BARBRA
                                               (D.C. No. 01-CV-3220-GTV)
 SCHNIEDER, Records Clerk for
                                                         (Kansas)
 Hutchinson Correctional Facility; R.
 VIERYA, Unit Team Manager of
 Hutchinson Correctional Facility; JON
 D. GRAVES, Assistant Attorney
 General for Kansas Department of
 Corrections; JOHN/JANE DOES, in
 their individual and official capacities,

          Defendants-Appellees.



                          ORDER AND JUDGMENT *



      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.


      Joseph L. Anderson, appearing pro se, appeals the district court’s dismissal

of his case without prejudice. Mr. Anderson, a state prisoner in a Kansas

corrections facility, filed suit in federal district court under 42 U.S.C. § 1983,

claiming that the state Department of Corrections miscalculated his total prison

term in violation of his constitutional rights. In his claim, Mr. Anderson sought

both equitable and legal forms of relief. The district court held that challenges to

prison terms must be brought under habeas corpus rather than section 1983.

Accordingly, the district court construed Mr. Anderson’s claim as a petition for

federal habeas corpus under 28 U.S.C. § 2241, and dismissed the claim without

prejudice for failure to exhaust state remedies. The district court also declined to

grant a Certificate of Appealability (COA). Mr. Anderson appeals. For the

reasons stated below, we affirm the district court’s holding construing Mr.

Anderson’s claims as claims for habeas relief under section 2241 and deny a

COA. 1

      Mr. Anderson presented his suit as arising under section 1983, but his

claim, as it currently stands, cannot be brought as a civil rights suit. As the

district court held, claims that challenge the fact of conviction or length of


      Mr. Anderson’s motion requesting that we enter a default against
      1

defendant for failure to file a brief is denied.

                                          -2-
incarceration are not cognizable under section 1983 because a more specific form

of legal challenge, habeas corpus, is available for this purpose. Preiser v.

Rodriguez, 411 U.S. 475 (1973). Mr. Anderson’s equitable relief claims are

direct challenges to his length of incarceration and therefore are not cognizable

under section 1983.

      Moreover, Mr. Anderson may not bring his section 1983 damages claims at

this time. To bring a damages claim that directly or impliedly challenges the

validity of conviction or incarceration under section 1983, a claimant must have

first obtained a favorable decision in state court or in federal habeas proceedings

on the conviction or incarceration issue he seeks to challenge. Heck v. Humphrey,

512 U.S. 477, 486-87 (1994). See also Edwards v. Balisok, 520 U.S. 641, 645-46

(1997). Because Mr. Anderson has not obtained such a determination, his

damages claims are not currently cognizable under section 1983.

      The appropriate avenue for challenging the execution of a sentence is a

habeas petition under 28 U.S.C. § 2241. The district court therefore properly

construed Mr. Anderson’s claim as a habeas petition filed pursuant to section

2241. The district court then dismissed without prejudice for failure to exhaust

state remedies.

      Because we agree Mr. Anderson’s claim should be construed as a petition

for habeas relief, he must have a COA in order to appeal. See 28 U.S.C. §


                                         -3-
2253(c)(1)(A); see also Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000)

(“state prisoner must obtain a COA to appeal the denial of a habeas petition,

whether such petition was filed pursuant to § 2254 or § 2241, whenever ‘the

detention complained of . . . arises out of process issued by a State court’”)

(quoting 28 U.S.C. § 2253(c)(1)(A)). The district court declined to grant a COA.

Pursuant to Fed. R. App. P. 22(b)(2), Mr. Anderson’s notice of appeal is deemed

a renewed application for a COA.

      Mr. Anderson is entitled to a COA only if he makes a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). A prisoner may

make this showing by demonstrating that the issues he seeks to raise on appeal are

1) deserving of further proceedings, 2) subject to a different resolution on appeal,

or 3) reasonably debatable among jurists of reason. See Barefoot v. Estelle, 463

U.S. 880, 893 n.4 (1983). We agree with the district court that Mr. Anderson’s

federal habeas petition, so construed, is premature. Mr. Anderson’s petition for

state post-conviction relief is currently pending before state courts, and the state

has not waived exhaustion. Consequently, the petitioner has not satisfied the

prerequisites for bringing a federal habeas petition. 28 U.S.C. § 2254(b)(1).

Accordingly, he has not made the showing required for a COA.




                                          -4-
     For the foregoing reasons, we DENY Mr. Anderson’s request for a COA

and DISMISS this appeal.

                                  ENTERED FOR THE COURT


                                  Stephanie K. Seymour
                                  Circuit Judge




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