UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STONEY BURET MCINTYRE,
Plaintiff-Appellant,

v.
                                                                      No. 99-6301
DANIEL L. STIENEKE; JUDY H. SILLS;
JOY R. SMITH,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-98-846-BR)

Submitted: June 23, 1999

Decided: August 26, 1999

Before WILKINS and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed as modified by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stoney Buret McIntyre, Appellant Pro Se.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Stoney McIntyre appeals the district court order dismissing his 42
U.S.C.A. § 1983 (West Supp. 1998) action alleging that the North
Carolina Department of Corrections's refusal to transfer him to fed-
eral custody violates the conditions of his state sentence and thus vio-
lates his due process rights. We affirm as modified.

McIntyre's claim challenging the execution of his state sentence
falls within the traditional scope of habeas corpus. See Preiser v.
Rodriguez, 411 U.S. 475, 486 (1973). Consequently, McIntyre may
not use § 1983 as a remedy to challenge his sentence because he has
not yet exhausted his claims in state court. See id. at 489-94. Simi-
larly, McIntyre cannot recover damages in a § 1983 action without
first establishing the invalidity of his sentence by the issuance of a
writ under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). See Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994). Therefore, we affirm the
district court's order as modified to reflect dismissal without preju-
dice to provide McIntyre with the opportunity to refile his claim in
a § 2254 petition after satisfying the exhaustion requirement by pre-
senting his claim to appropriate state institutions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED AS MODIFIED

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