                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 30 2003

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 CHRIS ALLEN BROWNFIELD,

          Plaintiff-Appellant,

 v.

 CARLA J. STOVALL, Kansas State                        No. 03-3099
 Attorney; LYNN FIELDS, Retired                (D.C. No. 02-CV-3205-GTV)
 Crawford County Sheriff; SANDY                          (Kansas)
 HORPON, Acting Crawford County
 Sheriff; DONALD R. NOLAND,
 Kansas Attorney at Law, in their
 official and individual capacities,

          Defendants-Appellees.



                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      Chris Brownfield, a Kansas state prisoner proceeding pro se, brought an


      *
       After examining 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
action under 42 U.S.C. § 1983, claiming a host of constitutional violations arising

out of the state of Kansas’ alleged failure to honor the terms of a plea agreement

entered into with Mr. Brownfield. The district court dismissed Mr. Brownfield’s

action for failure to state a claim, and he appeals. We liberally construe Mr.

Brownfield’s pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), and affirm.

      Mr. Brownfield is currently incarcerated in Kansas, where he is serving a

sentence imposed by the Kansas courts in 1986. His Kansas conviction and

sentence were the result of crimes he committed there after he escaped from an

Oklahoma prison where he was serving a twenty year sentence. In the Kansas

proceeding, Mr. Brownfield entered into a plea agreement in which the state

agreed not to oppose concurrent service of Mr. Brownfield’s Kansas and

Oklahoma sentences. During sentencing, however, the court made clear to Mr.

Brownfield that any sentence it imposed would not bind the Oklahoma courts, and

that it had no authority over what steps the state of Oklahoma might or might not

take to reacquire Mr. Brownfield for completion of his Oklahoma sentence.

Oklahoma authorities did submit a detainer to Kansas authorities for Mr.

Brownfield’s arrest and return to Oklahoma, but the record does not reflect that

Oklahoma took any further action to obtain custody of Mr. Brownfield.

      Our court previously rejected Mr. Brownfield’s habeas corpus petition

under 28 U.S.C. § 2254 in which he challenged the validity of his Kansas plea


                                         -2-
agreement and sentence. Brownfield v. Hannigan, 1996 WL 364589 (10th Cir.

June 28, 1996) (unpublished). Here, Mr. Brownfield again challenges the validity

of his plea agreement and sentence, this time under section 1983, seeking

damages and mandamus relief to effect his concurrent sentence. The district

court dismissed Mr. Brownfield’s action under 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim, but granted his motion to proceed on appeal without

payment of an initial partial filing fee, 28 U.S.C. § 1915(a), (b). 1 We review de

novo. Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999).

      The district court dismissed Mr. Brownfield’s action on several grounds, all

of which we find persuasive. First, the court correctly ruled that to the extent Mr.

Brownfield was seeking to challenge the execution of his Kansas sentence, he

needed to proceed on a petition for a writ of habeas corpus under 28 U.S.C. §

2241, after first exhausting available state court remedies. Montez v. McKinna,

208 F.3d 862, 866 (10th Cir. 2000); Bradshaw v. Story, 86 F.3d 164, 166-67 (10th

Cir. 1996). Likewise, to the extent Mr. Brownfield sought to challenge the

validity of his sentence based on new evidence which allegedly proved defendants

conspired to mislead and defraud him about his return to Oklahoma to serve his

sentences concurrently, such a claim should be raised in a writ for habeas corpus



      We remind Mr. Brownfield of his obligation to continue making partial
      1

payments of the appellate filing fee until the entire fee is paid.


                                         -3-
under 28 U.S.C. § 2254, assuming Mr. Brownfield first receives permission from

this court to file a successive § 2254 petition. See 28 U.S.C. § 2244(a)(b)(3)(A).

      The district court also rejected Mr. Brownfield’s claims that his rights were

being violated under the Kansas Agreement on Detainers Act, K AN . S TAT . A NN . §

22-4401, and the Uniform Criminal Extradition Act, K AN . S TAT . A NN . § 22-2701,

et seq. The Kansas Agreement on Detainers Act applies to “detainers based on

untried indictments, informations or complaints.” K AN . S TAT . A NN . § 22-4401.

Here, while the state of Oklahoma did issue a detainer for Mr. Brownfield, it was

for his arrest and return as an escapee to resume the service of his Oklahoma

sentence, not a detainer for any untried indictments, informations or complaints

against him. Nor does Mr. Brownfield’s reliance on K AN . S TAT . A NN . § 21-

4608(8) (Supp. 1985), support his argument that Kansas was required, pursuant to

the Detainers Act, to relinquish him to Oklahoma so that he could serve his

sentences concurrently in that state. Section 21-4608(8) speaks in permissive as

opposed to mandatory terms regarding Kansas’ obligation return a defendant

sentenced in its state courts to the custody of another jurisdiction so that the

defendant can serve his sentence in that jurisdiction concurrent with his Kansas

sentence.

      Similarly, the district court correctly determined the Kansas’ Uniform

Criminal Extradition Act, K AN . S TAT . A NN . § 22-2701, et seq., does not apply


                                          -4-
here. Mr. Brownfield does not have a constitutional right to compel his return to

Oklahoma by virtue of Kansas’ extradition act. Aycox v. Lytle, 196 F.3d 1174,

1178 (10th Cir. 1999) (defendant does not have constitutional right to compel

own extradition). Mr. Brownfield has also failed to proffer any evidence that

Oklahoma made an executive demand to the governor of Kansas for his return to

Oklahoma, which is required by the statute. K AN . S TAT . A NN . § 22-2702. See

also Ortega v. City of Kansas City, Kansas, 875 F.2d 1497, 1499 (10th Cir. 1989)

(“constitutional dimension of extradition exists only when demand is made by one

jurisdiction for the surrender of a person in another jurisdiction”). Hence, the

district court did not err in rejecting Mr. Brownfield’s detainer and extradition act

arguments.

      Finally, the district court properly determined it was unable to provide Mr.

Brownfield with the relief he seeks. The court could not give Mr. Brownfield

mandamus relief, as it possesses no jurisdiction to order Kansas officials to

release Mr. Brownfield to Oklahoma authorities. See 28 U.S.C. § 1361 (“The

district courts shall have original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.” (emphasis added)); Haggard v.

Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970) (“federal courts have no authority

to issue writs of mandamus to direct state courts or their judicial officers in the


                                          -5-
performance of their duties”). With respect to damages, absent a showing that

Mr. Brownfield’s continued Kansas confinement has been overturned by a state

tribunal or executive order, or called into question by the issuance of a writ of

habeas corpus, no colorable claim for damages under section 1983 can be stated.

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

      Accordingly, we AFFIRM the district court’s dismissal of Mr.

Brownfield’s section 1983 action. 2

                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Circuit Judge




      2
        In affirming the district court’s dismissal, we note that this ruling counts
as a “strike” under 28 U.S.C. § 1915(g). Furthermore, in light of our ruling, we
do not address Mr. Brownfield’s request for an en banc hearing.

                                         -6-
