16 F.3d 415NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Robert D. COTNER, Plaintiff-Appellant,v.William HEATHERINGTON and Attorney General of the State ofOklahoma, Defendants-Appellees.
No. 93-6344.
United States Court of Appeals, Tenth Circuit.
Feb. 15, 1994.

Before SEYMOUR, C.J., McKAY and BALDOCK, Circuit Judges.

ORDER AND JUDGMENT1

1
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.


2
Plaintiff brought suit under 42 U.S.C.1983 against Defendants, challenging his incarceration as unconstitutional.  The district court properly construed the complaint as a writ of habeas corpus, the only remedy available to Plaintiff under the circumstances.  The court then dismissed the habeas petition because Plaintiff already had a writ of habeas corpus concerning similar issues pending before another court.


3
We have reviewed Plaintiff's brief, the record on appeal, the magistrate's report and recommendation, and the district court's order.  We affirm for substantially the reasons given by the magistrate and the district court.



1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993.  151 F.R.D. 470


