                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               SEP 29 1997
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 KENNETH R. SELLERS,

               Petitioner - Appellant,                      No. 97-3188
          v.                                                (D. Kansas)
 LOUIS E. BRUCE, Warden;                              (D.C. No. 97-CV-3251)
 CHARLES SIMMONDS, Secretary of
 Corrections; (NFN) STEDEMAN, Unit
 Team, El Dorado Correctional
 Facility; (NFN) ROGAN, Unit Team,
 El Dorado Correctional Facility;
 (NFN) STUDEE, Unit Team, El
 Dorado Correctional Facility,

               Respondents - Appellees.


                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, 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        This order and judgment is not binding precedent, except under the doctrines of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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

        Kenneth R. Sellers, an inmate at the Ellsworth Correctional Facility,

brought this pro se action pursuant to 42 U.S.C. § 1983 claiming that his

constitutional rights were violated by the defendants’ refusal to establish his

parole violator term under the Kansas Guidelines Sentencing Act, specifically

K.S.A. 1993 Supp. 22-3717(f).

        K.S.A. 1993 Supp. 22-3717(f) was in effect between July 1, 1993,
        and March 24, 1994, and provided that “if an inmate was sentenced
        for a felony committed after July 1, 1993, while on parole or
        conditional release for a felony committed prior to July 1, 1993, the
        old sentences would be converted into a determinate sentence.” The
        length of the converted sentence depended on the class of the
        preguidelines felony. Effective March 24, 1994, K.S.A. 1993 Supp.
        22-3717(f) was amended so that preguidelines sentences would not
        be converted.

State v. Bissell, No. 76,333, 1997 WL 429621 (Kan. App. Aug. 1, 1997) (quoting

Payton v. State, 923 P.2d 1059 (Kan. App. 1996)).

        The district court construed this action as a petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254, and dismissed the action without

prejudice to permit Mr. Sellers to exhaust his state court remedies. Upon

reviewing the record, and Mr. Sellers’ arguments, we conclude that the district

court was correct for the reasons stated in the district court’s order filed June 19,

1997.


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      Mr. Sellers filed his habeas petition in the district court on June 5, 1997.

Accordingly, we review his petition and appeal under 28 U.S.C. §§ 2253 and

2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24,

1996), and treat the posture of this case as a renewed application for a certificate

of appealability. See 28 U.S.C. § 2253(c)(1). Because Mr. Sellers has not made a

substantial showing of the denial of a constitutional right, see § 2253(c)(2), we

DENY a certificate of appealability and DISMISS the appeal. The mandate shall

issue forthwith.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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