                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 23 1999
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 ARTHUR BERRY,
          Petitioner - Appellant,                        No. 98-3194
 v.                                               (D.C. No. 97-3438-GTV)
 MARILYN SCAFE, Chairperson,                               (D. Kan.)
 Kansas Parole Board,
          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      After examining Petitioner-Appellant’s brief and the 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.

      Petitioner Arthur Berry is a prisoner in a correctional facility in Lansing,

Kansas. Mr. Berry initiated this action by filing a complaint pursuant to 42

U.S.C. § 1983. He alleged that the Kansas Parole Board’s application of a newly


      *
       This order and judgment is not binding precedent, except under the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.
amended state statute extending the interval between parole hearings from three

years to a range of three to ten years violated his substantive due process rights

and the Ex Post Facto Clause of the United States Constitution. In his complaint,

Mr. Berry states that he is seeking injunctive and declaratory relief. See R., Vol

I., Doc. 1 at 5. Specifically, he asks the district court to “issue an order declaring

the Kansas Parole Board’s action of passing Plaintiff for ten (10) years for a

parole reconsideration hearing unconstitutional” and “to issue an order directing

the Kansas Parole Board to rescind its order passing Plaintiff for ten (10) years

and reschedule Plaintiff for a three (3) year deferral parole hearing in accordance

with the law in place at the time of Plaintiff’s conviction.” Id.

      In response to Mr. Berry’s complaint, the district court issued an order in

which it concluded that because the complaint raised a “challenge [to] the length

or fact of his confinement,” it should be construed as a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. R., Vol. 1, Doc. 2 at 1. Because the

court determined that Mr. Berry had failed to exhaust state court remedies, it

dismissed the action without prejudice. See Kan. Stat. Ann. § 60-1501(a)

(allowing persons in state custody to prosecute writs of habeas corpus). Mr.

Berry then filed a motion requesting the district court to reconsider its dismissal

of his action, which the court construed as a motion to alter and amend judgment

pursuant to Federal Rule of Civil Procedure 59(e). The court denied the motion,


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stating that Mr. Berry did “not raise any new issues which were not considered by

the court when preparing its [original] order.” R., Vol. I, Doc. 5 at 1. Mr. Berry

then filed a notice of appeal and, presumably because the district court construed

his action as a petition for a writ of habeas corpus, an application for a certificate

of appealability.

       On appeal, Mr. Berry contends that the district court’s decisions construing

his section 1983 complaint as a habeas corpus petition and dismissing the petition

for failure to exhaust his state remedies were erroneous. Mr. Berry argues that

because he is “ not seeking to challenge the length or fact of his confinement,” he

is not required to file a section 2254 petition and exhaust his state remedies.

Appellant’s Br. at 1-2. Mr. Berry further explains that since he is challenging the

“parole decision process” and “not the denial of parole,” his claim is properly the

subject of a section 1983 action.       Id. at 2. We review de novo the legal bases for

the district court's decision to construe Mr. Berry’s complaint as a habeas corpus

petition and its resulting dismissal.     See Jackson v. Shanks , 143 F.3d 1313, 1317

(10th Cir.), cert. denied , __ U.S. __, 119 S. Ct. 378 (1998).    We exercise

jurisdiction pursuant to 28 U.S.C. § 1291.

       We acknowledge that the distinction between section 2254 petitions and

section 1983 actions is not always easy to apply. The distinction may be

especially blurry when “a prisoner challenges an unconstitutional condition of


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confinement or prison procedure that affects the timing of his release from

custody.” Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (holding that

prisoner’s suit alleging that he was improperly placed in administrative

segregation, that prisoners in administrative segregation were never granted

parole, and that his placement was not reviewed as often as required was properly

construed as a section 1983 action). Nonetheless, distinguishing between the two

types of actions is critical because while exhaustion of available and adequate

state remedies generally is not a prerequisite to a section 1983 action, see Patsy

v. Board of Regents, 457 U.S. 496, 501 (1982), exhaustion is required before a

state prisoner may seek habeas corpus relief in federal court. See Rose v. Lundy,

455 U.S. 509, 515-16 (1982).

      Addressing the distinctions between habeas corpus petitions and section

1983 actions, the Supreme Court has held that “habeas corpus is the exclusive

remedy for a state prisoner who challenges the fact or duration of his confinement

and seeks immediate or speedier release, even though such a claim may come

within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481 (1994)

(citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)). By contrast, a section

1983 action is typically the proper vehicle for attacking unconstitutional

conditions of confinement and parole procedures. See Preiser, 411 U.S. at 498-

99; Carson, 112 F.3d at 820 (“Generally, § 1983 suits are the proper vehicle to


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attack unconstitutional conditions of confinement and prison procedures.”).

      In Heck, the Supreme Court addressed the types of claims for which state

prisoners may seek redress in section 1983 actions. See Heck, 512 U.S. at 480-

82. The Court held that a state prisoner’s claim for damages is not cognizable

under 42 U.S.C. § 1983 if a judgment in his or her favor “would necessarily imply

the invalidity of his conviction or sentence.” Id. at 487. If a judgment in favor of

the plaintiff would necessarily invalidate his conviction or sentence, then the

complaint must be dismissed unless the plaintiff can demonstrate that the

conviction or sentence already has been invalidated. Id. If the plaintiff cannot do

so, then habeas corpus is the exclusive remedy and exhaustion is required. See id.

at 481, 487.

      More recently, the Supreme Court again addressed the distinction between

section 1983 actions and section 2254 petitions. See Edwards v. Balisok, 520

U.S. 641, 117 S. Ct. 1584, 1587 (1997) (holding that prisoner’s claim was not

cognizable under section 1983 because it necessarily implied the invalidity of the

deprivation of his good-time credits). This decision further clarifies the

distinction between the two types of suits: When a prisoner seeks to challenge

prison conditions or procedures that, if his challenge were successful, would

“necessarily imply the invalidity of the punishment imposed,” then his claims are

not cognizable under 42 U.S.C. § 1983. Id. at 1589 ; see also Preiser, 411 U.S. at


                                         -5-
500 (holding that when a state prisoner seeks “a determination that he is entitled

to immediate release or a speedier release . . . , his sole federal remedy is a writ

of habeas corpus”); Carson, 112 F.3d at 820-21 (“If ‘a favorable

determination . . . would not automatically entitle [the prisoner] to accelerated

release,’ the proper vehicle is a § 1983 suit.” (internal citations omitted)).

Although section 1983 actions generally may be used to challenge prison

conditions and parole procedures, the key question is whether “the nature of the

challenge to the procedures [is] such as necessarily to imply the invalidity of the

judgment.” Edwards, 117 S. Ct. at 1587.

      In accordance with the Supreme Court cases discussed above, this court

also has recognized that the key distinction between the two types of actions is

the nature of the relief sought by the prisoner. See Herrera v. Harkins, 949 F.2d

1096, 1097-98 (10th Cir. 1991). Where a prisoner challenges “a constitutional

defect in an individual parole hearing, [and] where the remedy lies in providing a

new parole hearing, [the] prisoner must file a habeas petition.” Id. at 1097. By

contrast, where the prisoner seeks the benefit of a ruling on a constitutional issue

that may affect future parole hearings, i.e. “injunctive or declaratory relief to

correct constitutionally defective parole procedures,” id. at 1097, his action may

be filed under section 1983. See id. at 1097-98.

      In this case, Mr. Berry does not contend “that he is being unlawfully


                                          -6-
subjected to physical restraint,” and he does not seek “release from such

confinement.” Preiser, 411 U.S. at 486. Nor does he seek a hearing to correct the

outcome of a prior, defective parole hearing. Instead, Mr. Berry’s claims focus

on the defective parole procedures which he argues violate his substantive due

process rights and the Ex Post Facto Clause. Given the nature of his claims, Mr.

Berry “may not obtain the ‘new Parole Board Hearing’ he requested from the

district court,” but he may “obtain declaratory or injunctive relief regarding

parole procedures.” Herrera, 949 F.2d at 1098 (explaining that where a prisoner

seeks injunctive or declaratory relief to correct constitutionally defective parole

procedures under section 1983, “the court does not grant a new parole hearing;

rather, in any future parole hearings, the prisoner benefits from the new

constitutionally acceptable procedures.”).

      The fact that Mr. Berry asked the district court to grant him a parole

hearing within three years rather than ten years does not change our analysis. See

Woods v. Keenan, 116 F.3d 490, 1997 WL 345993, at *2 (10th Cir. 1997) (Table)

(“[W]e do not rely upon the plaintiff’s characterization, but, rather, we consider

the nature of the relief sought.”). As discussed above, a judgment favorable to

Mr. Berry will not automatically provide him with an immediate hearing, result in

his release, or shorten the duration of his sentence. At most, an adjudication that

the Kansas statute lengthening the time between parole hearings from three years


                                         -7-
to a range of three to ten years violated the Ex Post Facto Clause would entitle

Mr. Berry and similarly situated individuals to the future benefit of more frequent

parole hearings. Because this is not a case in which a judgment favorable to Mr.

Berry would necessarily imply the invalidity of his conviction, sentence, or parole

determination, we hold that Mr. Berry’s action is cognizable under 42 U.S.C. §

1983. 1 We therefore reverse the district court’s dismissal without prejudice and

remand for further proceedings consistent with this order and judgment.

      As we stated in Herrera, “[w]e express no opinion on the merits of the

complaint or on what relief, if any, would be appropriate.” Herrera, at 1098. We

do note that in 1995 the Supreme Court rejected an ex post facto challenge to a

California parole statute amendment lengthening the time between parole hearings

from one year to up to three years. See Morales, 514 U.S. at 503. In that case,

the Court developed the following test:

      [W]e have long held that the question of what legislative adjustments
      “will be held to be of sufficient moment to transgress the
      constitutional prohibition” [against ex post facto laws] must be a
      matter of “degree.” In evaluating the constitutionality of the
      [California] amendment, we must determine whether it produces a


      1
        Our holding that Mr. Berry’s claims are cognizable under 42 U.S.C. § 1983
does not necessarily mean that Mr. Berry could not have raised his concerns in a
petition for habeas corpus. See Preiser, 411 U.S. at 499 (“This is not to say that
habeas corpus may not also be available to challenge such prison conditions.”);
cf. California Dep’t of Corrections v. Morales, 514 U.S. 499, 504 (1995)
(addressing section 2254 petition raising ex post facto challenge to California
statute which increased length of time between parole hearings).

                                          -8-
       sufficient risk of increasing the measure of punishment attached to
       the covered crimes.

Id. at 509 (internal citation omitted). The Court went on to conclude that

California’s amendment created only a “speculative and attenuated possibility of

producing the prohibited effect of increasing the measure of punishment for the

covered crimes, and such conjectural effects are insufficient under any threshold

we might establish under the Ex Post Facto Clause.” Id. Other factors affecting

the Court’s decision included the fact that the amendment only affected “a class

of prisoners for whom the likelihood of release on parole is quite remote,”     id. at

510; it only provided the parole board with authority to change the timing of

subsequent parole hearings, not of the initial parole hearing,    see id. at 511; and

the board retained the authority to tailor the frequency of the subsequent hearings

to the individual prisoner.   See id. The record in this case is not sufficient to

meaningfully measure Mr. Berry’s claims in light of the principles set forth in

Morales.




       Finally, because we hold that Petitioner’s claims are cognizable under 42

U.S.C. § 1983, he does not need a certificate of appealability.

                                            -9-
REVERSED and REMANDED.

                                Entered for the Court



                                Monroe G. McKay
                                Circuit Judge




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