                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4179
                                    ___________

Scott A. Benke,                       *
                                      *
             Appellant,               *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Larry Norris, Director, Arkansas      * Eastern District of Arkansas.
Department of Correction; Arkansas    *
Post-Prison Transfer Board,           *         [UNPUBLISHED]
                                      *
             Appellees.               *
                                 ___________

                          Submitted: September 7, 2000

                                Filed: September 13, 2000
                                    ___________

Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                         ___________

PER CURIAM.

      Scott A. Benke, an Arkansas inmate, appeals from the district court’s1 dismissal
without prejudice of his 42 U.S.C. § 1983 action. We agree with the district court that


      1
        The Honorable George Howard, Jr., United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable Henry
L. Jones, Jr., United States Magistrate Judge for the Eastern District of Arkansas.
Mr. Benke, in challenging the requirement that he complete the Therapeutic
Community Program as a condition for parole, is in fact seeking release or a shortening
of the duration of his confinement, and thus must pursue the matter by filing a petition
for habeas corpus relief. See Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996)
(per curiam) (court must look to substance of relief sought to determine if action is
§ 1983 suit or habeas corpus action; prisoner’s labeling of suit is not controlling);
Wilson v. Lockhart, 949 F.2d 1051, 1051-52 (8th Cir. 1991) (challenge which would
result, if successful, only in earlier eligibility for parole and not necessarily earlier
release, should nonetheless be brought as habeas petition); Offet v. Solem, 823 F.2d
1256, 1257-59 (8th Cir. 1987) (no difference exists between effect of federal judgment
directly releasing inmate and one leaving state court no choice but to order same).
Because Mr. Benke has not claimed--much less proven--that he has exhausted his
available state remedies, dismissal without prejudice was appropriate. See 28 U.S.C.
§ 2254(b)(1)(A) (court shall not grant writ of habeas corpus unless applicant has
exhausted remedies available in state court system); Carmichael v. White, 163 F.3d
1044, 1045 (8th Cir. 1998) (§ 2254 petitioner has burden to show all available state
remedies have been exhausted or exceptional circumstances exist).

      Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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