                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    December 28, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 JIM M Y LY N FARRELL,

                 Petitioner - A ppellant,               No. 06-6280
          v.                                         (W . D. Oklahoma)
 ERIC FRANKLIN, W arden,                          (D.C. No. 06-CV-726-C)

                 Respondent - Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      On July 7, 2006, Jimmy Lyn Farrell, a state prisoner in Oklahoma, filed a

pleading in the United States District Court for the W estern District of Oklahoma

entitled “Petition Under 28 USC § 2254 for W rit of Habeas Corpus by a Person in

State Custody.” In it, he alleged various errors in the calculation and execution of

his sentence, including the loss of earned good-time credit resulting from

misconduct and the failure to receive additional credit for meritorious acts


      *
       After examining the brief 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
performed. He also appeared to claim that he was receiving inadequate medical

care in prison.

      In a report filed August 11, 2006, a magistrate judge construed

M r. Farrell’s claims regarding the duration of his sentence as an application for

habeas relief under 28 U.S.C. § 2241 because they attacked “the execution of his

sentence rather than the fact of his conviction . . . .” R. Doc. 9 at 1 n.1

(M agistrate Judge Report and Recommendation, August 11, 2006 (M agistrate

Report)); see Montez v. M cKinna, 208 F.3d 862, 865 (10th Cir. 2000). He then

interpreted M r. Farrell’s inadequate-medical-care claim as one under 42 U.S.C.

§ 1983 because it attacked the conditions of his confinement rather than the fact

or duration of his sentence. See M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

812 (10th Cir. 1997) (“A habeas corpus proceeding attacks the fact or duration of

a prisoner’s confinement and seeks the remedy of immediate release or a

shortened period of confinement. In contrast, a civil rights action attacks the

conditions of the prisoner’s confinement and requests monetary compensation for

such conditions.” (internal quotation marks and ellipsis omitted)).

      The magistrate judge recommended dismissal of M r. Farrell’s claims

without prejudice. He reasoned that the inadequate-medical-care claim was

“appropriate under 42 U.S.C. § 1983, and [is] not subject to consideration under

the principles of habeas corpus . . . .” R. Doc. 9 at 2 n.3 (M agistrate Report). A s

to the other claims, he stated that M r. Farrell had not exhausted administrative

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and state-court remedies available to him. See Hamm v. Saffle, 300 F.3d 1213,

1216 (10th Cir. 2002) (“A habeas petitioner is generally required to exhaust state

remedies whether his action is brought under § 2241 or § 2254. The exhaustion

of state remedies includes both administrative and state court remedies.” (internal

quotation marks and citation omitted)).

       On August 25, 2006, the district court adopted the magistrate judge’s report

and recommendation in its entirety and dismissed M r. Farrell’s application

without prejudice. It denied a certificate of appealability (COA) on September 7,

2006. See 28 U.S.C. § 2253(c)(1) (requiring COA to appeal denial of habeas

relief).

       M r. Farrell now seeks a COA from this court. State prisoners seeking

habeas relief under § 2241 must obtain a COA to appeal the denial of an

application. See Montez, 208 F.3d at 867. A COA will issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that . . . includes

showing that reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

In other words, the applicant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id. If the application was

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denied on procedural grounds, the applicant faces a double hurdle. Not only must

the applicant make a substantial showing of the denial of a constitutional right,

but he must also show “that jurists of reason would find it debatable whether . . .

the district court was correct in its procedural ruling.” Id. “W here a plain

procedural bar is present and the district court is correct to invoke it to dispose of

the case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id.

      Reasonable jurists could not dispute the district court’s dismissal without

prejudice of M r. Farrell’s claims. The court correctly ruled that the inadequate-

medical-care claim should be raised in a civil-rights action, not an application for

habeas relief. See Rael v. Williams, 223 F.3d 1153 (10th Cir. 2000). As to his

other claims, M r. Farrell now provides in his application for COA some support

for his claim that he exhausted his administrative remedies, but this showing is

too late. W e consider only the record before the district court, see Boone v.

Carlsbad Bancorp., 972 F.2d 1545, 1549 n.1 (10th Cir. 1992) (court will not

review documents not before district court when appealed ruling was made), and

there he made no showing of exhaustion. M oreover, he still has made no showing

that he has exhausted his judicial remedies. Thus, no reasonable jurist could

dispute the district court’s denial of these claims.




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      W e DENY M r. Farrell’s application for a COA and DISM ISS the appeal.

W e likewise DENY his M otion to Test Lawfulness of Restriction of Personal

Freedom, which raises issues substantially similar to those in his habeas

application, and his motion for leave to proceed on appeal in form a pauperis.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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