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No. 99-3163

(District of Kansas)

(D.C. No. 99-CV-3133)


Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs 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.

Robert Bentley, proceeding pro se and in forma pauperis, seeks a certificate of appealability ("COA") so that he can appeal the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(a). Because Bentley has not made a "substantial showing of the denial of a constitutional right," id. § 2253(c)(2), this court denies him a COA and dismisses this appeal.

In his habeas petition, Bentley asserted that he was being improperly denied access to Kansas legal resources and the Kansas courts and was thereby denied any opportunity to challenge his 1977 Kansas conviction for second degree murder. Although Bentley had been tried and convicted in Kansas, he is currently serving his sentence in an Arizona prison pursuant to an inmate transfer agreement between Kansas and Arizona. According to Bentley, the Arizona prison is completely lacking in Kansas legal materials.

The district court dismissed Bentley's § 2254 petition without prejudice on the grounds that Bentley's claims relate to the conditions of, rather than to the fact or duration of, his confinement and, therefore, must be brought in a 42 U.S.C. § 1983 civil rights complaint. See Berry v. Scafe, No. 98-3194, 1999 WL 89152, at *2-*3 (10th Cir. Feb. 23, 1999) (discussing distinction between § 2254 habeas petitions and § 1983 civil rights complaints and noting that they are not interchangeable). The district court further noted Bentley had raised this identical claim in a prior § 2254 petition and that the earlier petition had also been dismissed without prejudice on the grounds that the claims must be brought pursuant to § 1983.

Upon de novo review of Bentley's application for a COA and appellate brief, the district court order of dismissal, and the entire record on appeal, this court concludes that the district court's resolution of this case is not debatable among jurists of reason, subject to a different resolution on appeal, or deserving of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4. (1983). Accordingly, we DENY Bentley's request for a COA for substantially those reasons set forth in the district court's order dated May 17, 1999, and DISMISS the appeal.


Michael R. Murphy

Circuit Judge

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*. 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.

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