                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JAN 30 1998
                              FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    KENNETH E. SHAW,

                Plaintiff-Appellant,

    v.                                                     No. 97-3113
                                                     (D.C. No. 96-3235-GTV)
    CHUCK SIMMONS; KANSAS                                   (D. Kan.)
    DEPARTMENT OF CORRECTIONS;
    KANSAS PAROLE BOARD,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




         Appellant, a prisoner in custody in the Kansas state system, appears pro se

and in forma pauperis, and appeals the district court’s dismissal, without

prejudice, of his civil rights complaint. 1 Shaw claims that the Kansas Department

*
      This order and judgment is not binding precedent, except under the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.
1
         After examining the briefs and appellate record, this panel has determined
                                                                         (continued...)
of Corrections incorrectly computed his prison sentence and enhanced his parole

eligibility date. His complaint is entitled as a 42 U.S.C. § 1983 action and he

seeks monetary damages; however, his complaint also requests the court to

allow his complaint to be filed as a habeas corpus petition on the same issues.

See Richards v. Bellmon, 941 F.2d 1015, 1018 n. 3 (10th Cir. 1991) (“A single

complaint may seek relief partly under 28 U.S.C. § 2254 and partly under

§ 1983.”). Shaw was in custody at the time he filed his complaint; however,

during the pendency of this appeal, his sentence expired and he is no longer

in prison. 2

       We agree with the district court’s conclusion that Shaw essentially sought

relief which challenges “the fact or duration of his confinement and seeks

immediate or speedier release.” Heck v. Humphrey, 512 U.S. 477, 481 (1994).

Therefore, we agree with the district court that habeas corpus is Shaw’s exclusive

remedy, id.; and that Shaw would not be entitled to any monetary relief until such

time as it was determined he had been unconstitutionally confined, id. at 486.




1
 (...continued)
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.
2
      Shaw satisfied § 2254's “in custody” requirement at the time he filed his
action, and it was not defeated by his release prior to completion of the
proceedings. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

                                         -2-
      We also agree with the district court’s conclusion, that, to the extent Shaw

also sought habeas corpus relief, he failed to exhaust his state remedies as

required by 28 U.S.C. § 2254(b) and (c) and Rose v. Lundy, 455 U.S. 509, 515

(1982). The record demonstrates that Shaw raised his sentencing issue before

the Kansas Court of Appeals, which remanded to the sentencing court for further

action. See Shaw v. Nelson, No. 73,357 (Kan. Ct. App. Oct. 27, 1995)

(unpublished memorandum opinion). The sentencing court clarified Shaw’s

sentence by order dated March 14, 1996. There is no evidence in the record that

Shaw appealed the sentencing court’s 1996 order. Shaw’s failure to perfect an

appeal is a procedural default which cannot be challenged under federal habeas

except under a cause and prejudice standard or fundamental miscarriage of

justice, see Coleman v. Thompson, 501 U.S. 722, 750 (1991), neither of which

is alleged or shown here.

      The judgment is AFFIRMED for substantially the reasons set forth in the

district court’s order dated April 18, 1997. The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge



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