                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JAN 29 1998
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 KARL ELLIS-BEY,

           Petitioner-Appellant,
 vs.                                                   No. 97-3202
                                             (D.C. No. 1083-5:97-3259-GTV)
 L.E. BRUCE; CHARLES SIMMONS,                           (D. Kan.)
 Secretary of Corrections, Kansas
 Department of Corrections; J.
 FISCHER, Records Clerk, Ellsworth
 Correctional Facility; TERESA L.
 SAIYA, KPB Administrator,

           Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges. **




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
      Mr. Ellis-Bey, an inmate appearing pro se and in forma pauperis, appeals

from the dismissal without prejudice of his habeas petition, 28 U.S.C. §2254, 1 for

failure to exhaust state remedies. The district court also denied Mr. Ellis-Bey’s

request for a certificate of appealability. See 28 U.S.C. § 2253(c)(1),(2).

      Mr. Ellis-Bey contends that Defendants improperly aggregated his

sentences in violation of Kan. Stat. Ann. § 22-3717(f) (Supp. 1993). However,

the district court properly dismissed Mr. Ellis-Bey’s claims without prejudice, as

Mr. Ellis-Bey must exhaust state remedies available to him before a federal court

will examine his claims. See 28 U.S.C. § 2254(b)(1)(A); Miranda v. Cooper, 967

F.2d 392, 398 (10th Cir.), cert. denied, 506 U.S. 924 (1992). We accordingly

DENY Mr. Ellis-Bey’s motion for issuance of a certificate of appealability and

DISMISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge



      1
       Though Mr. Ellis-Bey’s pleadings posture this case as one arising under 28
U.S.C. § 1983, see I R. doc. 1 at 1-2(c), the district court properly construed his
request as one for habeas relief under 28 U.S.C. § 2254 because his claim, at
base, challenges the duration of his confinement. See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994) (no cause of action for damages under § 1983 unless
prior successful challenge to confinement); Preiser v. Rodriguez, 411 U.S. 475,
500 (1973).

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