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

                                                                         DEC 19 1997
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


 AARON DAVIS,

          Petitioner-Appellant,

 v.                                                    No. 97-3160
                                                  (D.C. No. 97-CV-3219)
 L.E. BRUCE, Warden, Ellsworth                           (D. Kan.)
 Correctional Facility; CHARLES
 SIMMONS, Secretary of Correction,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, 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 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        This order and judgment is not binding precedent except under the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.
      Mr. Davis is a state inmate and a pro se litigator. He appeals from the

district court's denial of habeas relief and refusal to grant a certificate of

appealability. We deny the certificate of appealability and dismiss the appeal.



      Mr. Davis, a parole violator, filed a pro se complaint alleging the

defendants violated his constitutional rights by their failure to convert his

sentence under the Kansas Sentencing Guidelines. Because Mr. Davis alleged he

was being confined illegally, the district court correctly treated his complaint as a

request for habeas relief. See Heck v. Humphrey, 512 U.S. 477, 487 (1994). The

court determined Mr. Davis failed to present his claims to the state courts and

dismissed his complaint for failure to exhaust. Id.



      Mr. Davis appeals this decision asserting a variety of arguments. Basically,

his arguments swirl about his claim that the Kansas authorities have misapplied

state law. Giving his appeal the benefit of a liberal reading, Mr. Davis argues the

district court's decision denied him equal protection of the law. We review de

novo a district court's dismissal of a petition for a writ of habeas corpus on legal

grounds. See Davis v. Executive Dir., Dep't of Corrections, 100 F.3d 750, 756

(10th Cir. 1996), cert. denied, 117 S. Ct. 828 (1997). But first we must decide

whether to issue a certificate of appealability pursuant to 28 U.S.C. § 2253. Such


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a certificate may only be issued upon a substantial showing of a denial of a

constitutional right. See 28 U.S.C. § 2253(c)(2). Mr. Davis has not met this

standard.



      Mr. Davis misperceives the law and his claims on appeal lack merit. Mr.

Davis fails to realize the federal courts will not consider his claims until he has

exhausted them in state court. See 28 U.S.C. § 2254(b)(1)(A). Mr. Davis sets

forth no reasons requiring this court to invoke an exception to the rule requiring

exhaustion.



      We deny the certificate of appealability and dismiss the appeal for

substantially the same reasons set forth by the district court in its order, a copy

being attached hereto.



      The mandate shall issue forthwith.



                                        Entered for the Court


                                        WADE BRORBY
                                        United States Circuit Judge




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