                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 17 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 JAMAL BEY,

           Petitioner-Appellant,
 v.                                                       No. 00-3026
 BOERNOR KEATING, Governor of                     (D.C. No. 99-CV-3387-DES)
 Oklahoma; SHERIFF OF LINCOLN                               (D.Kan.)
 COUNTY JAIL, State of Oklahoma;
 MICHAEL HILL, Sheriff of Sedgwick
 County Jail, State of Kansas,

           Respondents-Appellees.




                             ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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       This order and judgment is not binding precedent, except under the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.
      Plaintiff-appellant Jamal Bey initiated this pro se action after he was

extradited from Oklahoma to Kansas. The district court construed Bey’s

complaint strictly as an application for writ of habeas corpus pursuant to 28

U.S.C. § 2254 and dismissed it without prejudice. Bey now appeals. With

respect to the portion of Bey’s complaint seeking federal habeas relief, we grant

his request for a certificate of appealability, reverse the district court’s order

dismissing the claim without prejudice, and remand with directions to the district

court to dismiss the claim with prejudice. Because we conclude that Bey’s

complaint also included a claim for civil rights relief pursuant to 28 U.S.C.

§ 1983, we reverse and remand that claim to the district court for further

proceedings.

      According to his complaint, Bey was arrested on October 25, 1999, in

Lincoln County, Oklahoma, and placed in the Lincoln County Jail. Bey allegedly

attempted to challenge his arrest and/or confinement by filing a state habeas

petition in the Oklahoma courts. On November 24, 1999, while Bey’s state

habeas petition was still pending before the Oklahoma Court of Criminal Appeals,

officials at the Lincoln County Jail received a warrant signed by Oklahoma

Governor Frank Keating requesting Bey’s extradition to the State of Kansas. Bey

immediately filed a second state habeas petition challenging the extradition

warrant. On November 30, 1999, while his two state habeas proceedings


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allegedly remained pending, Bey was transferred from the Lincoln County Jail to

the Sedgwick County Jail in Wichita, Kansas.

      On December 13, 1999, Bey filed this action. Bey alleged he was denied

due process of law because he was transferred to Kansas before his Oklahoma

habeas petitions had been resolved. Bey requested “immediate release and

compensation.” ROA, Doc. 1. The district court dismissed the case without

prejudice, prior to service on defendants. In doing so, the district court construed

the action solely as one for federal habeas relief. The district court concluded

that, to the extent Bey was claiming his extradition from Oklahoma to Kansas was

unlawful, his request for habeas relief had been mooted by the actual transfer.

Further, the district court concluded that to the extent Bey was challenging the

jurisdiction of Kansas authorities to detain him on Kansas charges, he had failed

to first exhaust available state court remedies.

      After receiving the district court’s order of dismissal, Bey filed a pleading

entitled “Amendment to Writ of Habus (sic) Corpus Petition.” ROA, Doc. 5. In

that pleading, Bey requested damages from plaintiffs “in the sum of

$25,000,000.00.” Id. The district court construed Bey’s pleading as a motion to

alter or amend judgment and denied it. Id., Doc. 6. Bey filed a notice of appeal,

again asserting he was entitled to immediate release from confinement and

$25,000,000.00 in damages for emotional distress. Id., Doc. 8. The district court


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declined to issue Bey a certificate of appealability. Id., Doc. 11.

      In light of Bey’s consistent requests for immediate release from

confinement, we agree with the district court that Bey was in part seeking federal

habeas relief. See McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812

(10th Cir. 1997) (noting that a habeas corpus proceeding attacks the fact or

duration of a prisoner’s confinement and seeks the remedy of immediate release).

We further agree with the district court that Bey has not exhausted his remedies in

the Kansas state courts. However, because we are firmly convinced there is no

merit to Bey’s federal habeas claim, and because we are remanding the case to the

district court for further review of Bey’s § 1983 claim, we conclude the

appropriate course is to also remand the habeas claim with directions to dismiss it

with prejudice. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of the applicant

to exhaust the remedies available in the courts of the State.”). The gist of Bey’s

federal habeas claim is that he was extradited before he could pursue all of the

procedural avenues available to him under Oklahoma law. Those allegations,

even if true, are not sufficient to support a valid claim for federal habeas relief.

Once a prisoner facing extradition “has been returned to the demanding state, the

writ of habeas corpus is no longer available to challenge his confinement upon

grounds arising in the asylum state.” Gee v. State, 912 F.2d 414, 416 (10th Cir.


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1990) (internal quotations omitted); see Remeta v. Singletary, 85 F.3d 513, 518-

19 (11th Cir. 1996) (concluding that failure of asylum state to provide petitioner a

pre-extradition hearing did not deprive requesting state of jurisdiction to try

petitioner for criminal charges); Eckert v. Tansy, 936 F.2d 444, 450 (9th Cir.

1991) (concluding federal habeas corpus relief cannot be granted “on the ground

of illegal extradition”); Shack v. Attorney General, 776 F.2d 1170, 1172 (3d Cir.

1985) (concluding that deprivation of right to pre-extradition hearing did not

render petitioner’s subsequent confinement illegal or prevent state from

prosecuting him).

      Liberally construing Bey’s complaint, we conclude he has also asserted a

claim for relief under 42 U.S.C. § 1983. See generally Richards v. Bellmon, 941

F.2d 1015, 1018 n. 3 (10th Cir. 1991) (“A single complaint may seek relief partly

under 28 U.S.C. § 2254 and partly under § 1983.”). In all of the pleadings filed

with the district court, Bey consistently requested monetary damages arising out

of the defendants’ alleged failure to afford him the process due under Oklahoma

law. Based upon our past cases, this appears to be a claim cognizable under §

1983. See Long v. Shillinger, 927 F.2d 525, 528 (10th Cir. 1991) (concluding §

1983 plaintiff was only entitled to nominal damages for deprivation of due

process that resulted when he was extradited without being allowed to utilize

procedures afforded under Wyoming law). Because the district court overlooked


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this aspect of Bey’s complaint, we must reverse and remand the claim to the

district court for further consideration.

      We GRANT Bey’s application for certificate of appealability, REVERSE

the district court’s order dismissing Bey’s federal habeas claim without prejudice,

and REMAND the federal habeas claim to the district court with instructions to

dismiss it with prejudice. To the extent Bey is seeking to vindicate violations of

his federal civil rights pursuant to 42 U.S.C. § 1983, we REVERSE and

REMAND for further proceedings.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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