          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                 May 14, 2008
                                No. 07-40343
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

ANTHONY A WHITEHURST

                                           Plaintiff-Appellant

v.

DORIS JONES

                                           Defendant-Appellee


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 2:06-CV-150


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
      Anthony A. Whitehurst, former federal prisoner, appeals the dismissal of
his action brought pursuant to Bivens v. Six Unknown Named Agents of
Narcotics, 403 U.S. 388 (1971), as time barred. Whitehurst asserts that his
claim against Doris Jones for detaining him past an accurately calculated
release date and his claim against the Bureau of Prisons officials for preventing
him from exhausting his administrative remedies were timely filed because the



      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                   No. 07-40343

statute of limitations did not begin to run until he was released from prison on
February 3, 2006. He additionally asserts that the statute of limitations was
tolled during the time he attempted to exhaust his administrative remedies.
Finally, Whitehurst contends that the statute of limitations was tolled until
February 3, 2006 because 28 U.S.C. § 1915(g) prevented him from filing a civil
action while he was incarcerated.
      Whitehurst brought this action pursuant to Bivens. Whitehurst, however,
must exhaust his remedies available to him through habeas corpus before
pursuing his Bivens claims because he challenges the duration of his
confinement. See Cook v. Texas Dep’t of Criminal Justice Transitional Planning
Dep’t, 37 F.3d 166, 168 (5th Cir. 1994)(“The core issue in determining whether
a prisoner must pursue habeas corpus relief rather than a civil rights action is
to determine whether the prisoner challenges the ‘fact or duration’ of his
confinement or merely the rules, customs, and procedures affecting ‘conditions’
of confinement.”); Spina v. Aaron, 821 F.2d 1126, 1128 (5th Cir. 1987).
Whitehurst’s claims that the denial of time credits unlawfully extended his
detention directly implicate the duration of his confinement. Although
Whitehurst is currently serving an eight-year term of supervised release, 28
U.S.C. § 2241 habeas relief is still available to Whitehurst because the district
court may exercise its discretion to modify his term of supervised release under
18 U.S.C. § 3583(e)(2) if it determines that he has served excess time in prison.
See United States v. Johnson, 529 U.S. 53, 60 (2000).
      According to the rule in Heck v. Humphrey, 512 U.S. 477 (1994),
Whitehurst cannot bring his Bivens action for damages until his conviction or
sentence has been “reversed on direct appeal, expunged by executive order,
declared invalid . . . or called into question by a federal court’s issuance of a writ
of habeas corpus.” 512 U.S. at 486-87. Accordingly, Whitehurst must exhaust
his habeas remedies and obtain relief on his claim concerning his illegal
detention prior to filing his Bivens action. See id.

                                          2
                                 No. 07-40343

      Because Whitehurst must obtain an order invalidating his illegal
detention prior to bringing his Bivens action, his Bivens action does not accrue
until he receives such an invalidation. See Stephenson v. Reno, 28 F.3d 26, 27-28
(5th Cir. 1994). Whitehurst’s Bivens claims are therefore not time barred.
Although the district court erred in determining that Whitehurst’s action was
time barred, the district court’s decision to dismiss the lawsuit can be affirmed
on alternative grounds because Heck bars Whitehurst from bringing his Bivens
action prior to obtaining an order invalidating his illegal detention.
      AFFIRMED.




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