                      UNITED STATES COURT OF APPEALS
Filed 1/10/97
                             FOR THE TENTH CIRCUIT



    RONALD E. VEATCH,

                Petitioner-Appellant,

    v.                                                   No. 95-6342
                                                   (D.C. No. CIV-94-666-W)
    UNITED STATES OF AMERICA,                            (W.D. Okla.)

                Respondent-Appellee.




                             ORDER AND JUDGMENT *



Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
**
       Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Petitioner Ronald E. Veatch appeals from the district court’s orders

adopting the magistrate judge’s recommendations to dismiss his claims brought

under 28 U.S.C. § 2241 and 42 U.S.C. §§ 1983-1986, based on conditions he

endured in the Oklahoma County Jail while awaiting trial. He claims the jail

conditions prevented him from defending himself and receiving a fair trial in the

criminal case for which he was being held. He was ultimately convicted. The

remedy he seeks is reversal of the criminal conviction.

      Habeas proceedings under § 2241 cannot be used as a substitute for a direct

criminal appeal. Cf. United States v. Warner, 23 F.3d 287, 291 (10th

Cir.1994)(habeas proceedings “are not available to test the legality of matters

which should have been raised on direct appeal”). Petitioner’s claims that he was

denied a fair trial and an opportunity to present a defense were related to his

criminal case. Therefore, the avenue for relief from petitioner’s criminal

conviction was a direct criminal appeal.

      Petitioner’s claims that the jail conditions were intolerable are not

cognizable under § 2241. “[T]he essence of habeas corpus is an attack by a

person in custody upon the legality of that custody, and that the traditional

function of the writ is to secure release from illegal custody.” Prieser v.


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Rodriguez, 411 U.S. 475, 484 (1973). While such allegations may give rise to

other remedies, habeas corpus is not available to redress these grievances because

the jail conditions have no bearing on the validity of his custody.

      We next address petitioner’s claims styled as “civil rights violations

42 USC 1983-1986.” R. vol. I, doc. 1 at 1. Petitioner alleges that the

prosecuting attorneys in his criminal case, the public defenders, and various jail

personnel conspired to keep him in solitary confinement and deprive him of

proper food, exercise, a telephone, and a law library in order to prevent him from

defending himself in the criminal case. Citing Haines v. Kerner, 404 U.S. 519

(1972), the district court liberally construed petitioner’s claims as stating a cause

of action under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), and dismissed the claims because they were filed

against the United States government, rather than against the individuals

involved. The district court correctly dismissed the Bivens action brought against

the United States. See Weaver v. United States, 98 F.3d 518, 520 (10th Cir.

1996)(suit against the United States barred by sovereign immunity); Chapoose v.

Hodel, 831 F.2d 931, 935 (10th Cir. 1987)(same).

      Because we determine that petitioner’s claims were properly dismissed on

legal grounds, the district court did not abuse its discretion in denying discovery

and a hearing. See Lasiter v. Thomas, 89 F.3d 699, 702 (10th Cir. 1996)(district


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court’s denial of hearing reviewed for abuse of discretion); Medina v. Barnes, 71

F.3d 363, 366 (10th Cir. 1995)(“To be entitled to an evidentiary hearing in a

federal habeas action, the petitioner must first make allegations which, if proved,

would entitle him to relief.”).

      We decline to address petitioner’s arguments pertaining to a parole violator

warrant because he raised them for the first time in his reply brief. See State

Farm Fire & Casualty Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994)(issue

waived if not raised in opening brief); Lyons v. Jefferson Bank & Trust, 994 F.2d

716, 724 (10th Cir. 1993)(generally, issues raised for first time in reply brief will

not be considered). Petitioner’s remaining claims were not presented to the

district court, and will not be considered for the first time on appeal. See Herr v.

Heiman, 75 F.3d 1509, 1515 (10th Cir. 1996).

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED. The mandate shall issue forthwith.




                                                     Entered for the Court



                                                     John W. Lungstrum
                                                     District Judge


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