                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 10 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


STEVEN AYALA,

          Petitioner-Appellant,
                                                         No. 99-1401
v.
                                                     (District of Colorado)
                                                      (D.C. No. 99-Z-845)
DEPT. OF CORRECTIONS and
COLORADO PAROLE DEPT.,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). 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       This order and judgment is not binding precedent, except under the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.
      Steven Ayala appeals the district court’s dismissal without prejudice of his

28 U.S.C. § 2241 petition, which the district court construed as a 28 U.S.C. §

2254 habeas petition, on the grounds that Ayala had failed to exhaust his state

remedies. Ayala appeals, contending that the district court erred in treating his

petition as if it were filed pursuant to § 2254. This court construes Ayala’s

appellate brief as a request for a certificate of appealability (“COA”), denies

Ayala a COA on the grounds that he has failed make a substantial showing of the

denial of a constitutional right, see 28 U.S.C. § 2253(c), and dismisses the

appeal.

      Ayala pleaded guilty to attempted second degree assault in Colorado state

court in 1996. The state court sentenced Ayala to four years in the custody of the

Colorado Department of Corrections. In addition, the judgment of conviction

specifically provides that Ayala is sentenced to “any term of parole authorized by

[Colo. Rev. Stat. § 17-22.5-303].” Rather than appealing his sentence in state

court, Ayala filed the instant petition, nominally pursuant to § 2241, which, read

liberally, asserted that the term of parole was not consistent with the terms of his

plea agreement and, to the extent the term of parole was validly imposed, his plea

was involuntary and unknowing because he had not been informed that he would

be subject to mandatory parole.




                                         -2-
      The district court began its analysis of Ayala’s petition by concluding that

because Ayala was in state custody, his petition must have been asserted pursuant

to § 2254. So construed, the district court concluded that Ayala’s petition must

be dismissed pursuant to 28 U.S.C. § 2254(b)(1), which precludes the granting of

habeas corpus relief unless the petitioner has exhausted his state remedies. On

appeal, Ayala does not contest that he has not exhausted his state remedies.

Instead, he simply asserts that the district court erred in construing his petition as

arising under § 2254. According to Ayala, his petition was properly filed

pursuant to § 2241 because it challenges the execution of his sentence rather than

its validity. Implicit in this argument is the assertion that exhaustion of state

remedies is not required under § 2241.

      Although this court is puzzled by the district court’s seeming conclusion

that Ayala’s petition must ipso facto arise under § 2254 simply because Ayala is

in state custody, we agree that Ayala’s petition must be construed as a § 2254

petition. Section 2241 proceedings are used to attack the execution of a sentence,

in contrast to § 2254 habeas proceedings, which are used to collaterally attack the

validity of a conviction and sentence. See McIntosh v. United States Parole

Comm’n, 115 F.3d 809, 812 (10 th Cir. 1997). It is particularly clear in this case

that the term of parole of which Ayala complains was set forth in his Judgment of

Conviction and Sentence and that each of the challenges in his petition attack the


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validity ab initio of that mandatory term, not the manner in which the parole

board has chosen to execute such term. The district court was entirely correct in

dismissing Ayala’s petition for failure to exhaust state remedies. See 28 U.S.C. §

2254(b)(1). We further note that even if Ayala was correct in asserting that his

petition was properly styled as a § 2241 petition, he is completely in error in

assuming that exhaustion of state remedies is not a prerequisite to bringing a §

2241 petition. See Cooper v. Schear, Nos. 98-1158, -1159, 1999 WL 14047, at *3

(10 th Cir. Jan. 15, 1999) (unpublished disposition); Holman v. Booker, No. 98-

3124, 1998 WL 864018, at *2 (10 th Cir. Dec. 14, 1998) (unpublished disposition).

      The district court’s construction of Ayala’s petition as one requesting relief

under § 2254 and dismissal of that petition without prejudice on the grounds that

Ayala has not exhausted his state remedies is not deserving of further

proceedings, subject to a different resolution on appeal, or reasonably debatable

among jurists of reason. See Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983).

Accordingly, Ayala is not made a substantial showing of the denial of a

constitutional right and is thus not entitled to a COA. See 28 U.S.C. § 2253(c).

This appeal is therefore DISMISSED.

                                       ENTERED FOR THE COURT:

                                       Michael R. Murphy
                                       Circuit Judge



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