                      UNITED STATES COURT OF APPEALS
Filed 12/19/96
                             FOR THE TENTH CIRCUIT



    CLARENCE FERGUSON,

               Plaintiff-Appellant,

    and                                                No. 95-3379
                                                    (D.C. No. 95-3401)
    THADDEUS JONES, LESLIE KEITH                        (D. Kan.)
    KIMBALL, CLETIS O’QUINN,

               Plaintiffs,

    v.

    JOAN FINNEY, Governor, State of
    Kansas; BILL GRAVES, Current
    Governor of Kansas,

               Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before PORFILIO, ALARCON, ** and LUCERO, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
**
     Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
      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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant Clarence Ferguson, along with three other inmates at the

El Dorado Correctional Facility in El Dorado, Kansas, filed a civil rights

complaint pursuant to 42 U.S.C § 1983. 1 In their complaint, plaintiffs alleged

that, as minority defendants sentenced before July 1, 1993, they were sentenced

under a Kansas sentencing system which discriminated against them due to race.

Plaintiffs sought declaratory relief and damages, stating that they were basing

their case on discrimination alone and were not attacking the fact or duration of

confinement. The district court, however, construed their complaint as

challenging the constitutionality of their sentences under 28 U.S.C. § 2254 and

dismissed the action for failure to exhaust state remedies.

      At the time Mr. Ferguson filed this appeal, the right to appeal the district

court’s denial of habeas corpus relief was predicated on the grant of a certificate

of probable cause. 28 U.S.C. § 2253. On April 24, 1996, Congress enacted the



1
      Mr. Ferguson is the only one of the four plaintiffs originally filing this case
who is properly before this court on appeal.

                                         -2-
Antiterrorism and Effective Death Penalty Act of 1996 (the Act), Pub.L. No. 104-

132, 110 Stat. 1214, which alters the procedures for habeas corpus appeals.

Section 102 of the Act requires that a prisoner seeking appeal of the denial of

habeas corpus relief obtain a certificate of appealability instead of a certificate of

probable cause. Under the Act, “a certificate of appealability may issue . . . only

if the applicant has made a substantial showing of the denial of a constitutional

right.” Id. § 102 ( to be codified at 28 U.S.C. § 2253(c)(2)). Because the

standards for obtaining a certificate of appealability are the same as the previous

standards for obtaining a certificate of probable cause, we apply the amended

statute to pending cases. Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996).

      Mr. Ferguson, although seeking damages and declaratory relief under §

1983, essentially challenges the constitutionality of his state court sentence. In its

recent decision in Heck v. Humphrey, 114 S. Ct. 2364 (1994), the Supreme Court

held that

      in order to recover damages for allegedly unconstitutional conviction
      or imprisonment, or for other harm caused by actions whose
      unlawfulness would render a conviction or sentence invalid, a § 1983
      plaintiff must prove that the conviction or sentence has been reversed
      on direct appeal, expunged by executive order, declared invalid by a
      state tribunal authorized to make such determination, or called into
      question by a federal court’s issuance of a writ of habeas corpus, 28
      U.S.C. § 2254. A claim for damages bearing that relationship to a
      conviction or sentence that has not been so invalidated is not
      cognizable under § 1983.



                                          -3-
Id. at 2372 (footnote omitted); accord Parris v. United States, 45 F.3d 383, 384-85

(10th Cir.), cert. denied, 115 S. Ct. 1984 (1995). Because Mr. Ferguson could not

establish that his sentence had been previously invalidated, his complaint would

not be cognizable under § 1983. Therefore,we conclude that the district court did

not err in construing the complaint as a petition for writ of habeas corpus and

dismissing for failure to exhaust state remedies. See 28 U.S.C. § 2254.

      Mr. Ferguson, having failed to make the necessary “showing of the denial

of a constitutional right,” is not entitled to a certificate of appealability. 2 Mr.

Ferguson’s application for a certificate of appealability is DENIED, and his

appeal is DISMISSED. Mr. Ferguson’s motion to appoint counsel, “Emergency

Act for Injunction,” “Supplemental Issue in Order for Mandatory Injunction Fed.

R. #65,” and “Motion for Summary Judgment” are DENIED.

      The mandate shall issue forthwith.

                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Circuit Judge




2
      Because of our decision in this case, we need not address whether § 101 of
the Act, which establishes a one-year statute of limitations for § 2254 petitions is
applicable here.

                                           -4-
