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

                                                                              MAR 25 2003
                       UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                   Clerk
                                     TENTH CIRCUIT



 JOSE C. ATENCIO,

           Plaintiff - Appellant,
                                                             No. 02-1450
 v.                                                        (No. 02-Z-1572)
                                                            (D. Colorado)
 KYLE IPSON, Court Appointed P.C.;
 GREGORY LYMAN, Senior District
 Judge; JOEL FRY, Deputy District
 Attorney; MILES A. BUCKINGHAM,
 Deputy District Attorney,

           Defendants - Appellees.


                              ORDER AND JUDGMENT             *




Before EBEL , LUCERO , and HARTZ , Circuit Judges.



          Jose C. Atencio, appearing pro se, filed suit in federal district court under

42 U.S.C. § 1983, alleging that he was denied a fair trial. Atencio named as




      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
defendants his court-appointed trial attorney, the state court judge who presided

over his trial, and the two deputy district attorneys who prosecuted him. After

recharacterizing Atencio’s claim as one arising under 28 U.S.C. § 2254 rather

than under § 1983, the district court concluded that the § 2254 habeas petition

could not succeed because Atencio failed to exhaust state remedies as required

under subsection (b)(1), and dismissed the case without prejudice.          On appeal,

Atencio argues that the district court erroneously characterized his complaint as a

§ 2254 petition and improperly dismissed his claim without affording him the

opportunity to amend his pleadings. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

      In his complaint, Atencio challenged the constitutionality of his criminal

trial and conviction. It is axiomatic that when a state prisoner, though asserting

jurisdiction under § 1983, challenges the      existence of confinement rather than the

conditions of confinement, the writ of habeas corpus constitutes the sole remedy

available. Heck v. Humphrey , 512 U.S. 477, 481 (1994);           Preiser v. Rodriguez ,

411 U.S. 475, 500 (1973). Notwithstanding Atencio’s failure to state a valid

claim under § 1983, the district court dutifully carried out its obligation to

construe Atencio’s pleading liberally under         Haines v. Kerner , 404 U.S. 519,

520–21 (1972), by recharacterizing his claim as if it were properly brought in a

habeas petition . We conclude that the district court acted properly in


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recharacterizing Atencio’s claim as a habeas petition under § 2254. Moreover,

the district court also properly dismissed Atencio’s claim without affording him

the opportunity to amend his pleadings. Dismissal of a pro se complaint is proper

where “it is obvious that the plaintiff cannot prevail on the facts he has alleged

and it would be futile to give him an opportunity to amend.”    Gaines v. Stenseng ,

292 F.3d 1222, 1224 (10th Cir. 2002).

       On appeal, Atencio gives no indication of facts or theories that would merit

relief under either § 1983 or § 2254. As discussed above, permitting Atencio to

amend his pleading under § 1983 would be futile because Atencio challenges the

existence of his conviction, rather than the conditions of his confinement. The

futility of permitting Atencio to amend his pleading to state a § 2254 habeas claim

is also apparent. A state prisoner bears the burden of showing that he has

exhausted state remedies in order to bring a habeas action.    Miranda v. Cooper ,

967 F.2d 392, 398 (10th Cir. 1992). Atencio fails to identify any facts suggesting

he properly exhausted state remedies and that a § 2254 action is ripe for review.

Given the futility of permitting Atencio to amend his pleadings, the dismissal

without prejudice was more than appropriate.

       For the foregoing reasons, we    AFFIRM the judgment of the district court.

Because Atencio paid the full $150 filing fee for commencing a § 1983 action,




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however, the amount paid should be refunded to him, to the extent it exceeds the

fee chargeable for the filing of a petition for habeas corpus.



                                        ENTERED FOR THE COURT


                                        Carlos F. Lucero
                                        Circuit Judge




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