162 F.3d 1173
98 CJ C.A.R. 5685
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Henry Lee McCONE, Plaintiff-Appellant,
v.
WYOMING ATTORNEY GENERAL; Judie L. Chitwood; Judy Uphoof,
Defendants-Appellees.
No. 97-8118.
United States Court of Appeals, Tenth Circuit.
Nov. 4, 1998.
PORFILIO, KELLY, and HENRY, C.J.**
ORDER AND JUDGMENT*
Plaintiff-Appellant Henry Lee McCone appeals from the district court's dismissal, without prejudice, of his 42 U.S.C. § 1983 claim seeking damages and alleging violation of his constitutional rights by state officers during proceedings to revoke his parole. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm. The district court was correct in determining that Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), bars the present action absent a determination that the parole revocation was invalid. See White v. Gittens, 121 F.3d 803, 807 (1st Cir.1997); Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996). Likewise, the district court was correct in holding that, even if the complaint was construed as a habeas corpus petition, Mr. McCone had failed to exhaust state court remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Demarest v. Price, 130 F.3d 922, 932 (10th Cir.1997).
AFFIRMED.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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
