This civil rights action for violation of the Fifth, Thirteenth, and Fourteenth Amendments and seeking damages and declaratory and injunctive relief under 42 U.S.C. § 1983 was filed against the retired state judge who presided over Caldwell's earlier state criminal trial. Finding that Caldwell's suit is in reality an attack on the constitutionality of her state court conviction and that she has failed to exhaust her state remedies, we reverse the District Court's grant of summary judgment for the defendant and remand with directions to dismiss this suit.

On November 1, 1979, Leleonia Caldwell was found guilty after a jury trial in Texas state court of securing the execution of a document, here a warranty deed, by deception. Caldwell was sentenced to five years but the judge modified this with a five-year probated sentence after Caldwell reconveyed to the original owner the real property that she had been convicted of obtaining by deception. Subsequently, Caldwell brought suit in federal court against the state judge who had presided at her criminal trial and sentencing alleging, among other claims, that the judge was without jurisdiction to force Caldwell to reconvey the real property, resulting in a deprivation of property without due process and violations of the Thirteenth and Fourteenth Amendments because Caldwell was black.1

The defendant, Judge Line, in his motion to dismiss, contended that his actions were protected by judicial immunity. Caldwell attacked this defense, asserting that Line, a retired judge, was without jurisdiction because he lacked an administrative assignment as required under Texas law and therefore judicial immunity failed to shield his actions. The District Court, on cross-motions for summary judgment and after a hearing, determined that the issue of assignment was irrelevant and that under Texas law a retired judge who has timely filed an election to serve in a judicial capacity needs no formal order to preside in place of a duly elected judge. Further, the District Court found that in this Circuit a judge acting within his judicial capacity is absolutely immune from liability under the Civil Rights Act and that Judge Line was a judge acting in such capacity. From the grant of summary judgment in favor of Judge Line, Caldwell appeals.

Our first task is to determine if Caldwell's suit, although labeled a § 1983 action, is in reality a habeas corpus action subject to the exhaustion requirements of 28 U.S.C. § 2254(b). While a complainant in a § 1983 action who is not eligible for habeas corpus relief is not generally required to exhaust state remedies, this Court has made clear that when the suit in reality is challenging the validity of the conviction it amounts to a habeas corpus action and the party must have exhausted state remedies. Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976), adhered to en banc, 550 F.2d 342 (1977); Meadows v. Evans, 529 F.2d 385 (5th Cir. 1976), adhered to en banc, 550 F.2d 345 (1977), cert. denied, 434 U.S. 969, 98 S. Ct. 517, 54 L. Ed. 2d 457 (1977); Grundstrom v. Darnell, 531 F.2d 272, 273 (5th Cir. 1976); Watson v. Briscoe, 554 F.2d 650, 652 (5th Cir. 1977); Robinson v. Richardson, 556 F.2d 332, 334-35 (5th Cir. 1977); Johnson v. Hardy, 601 F.2d 172, 174 (5th Cir. 1979); Keenan v. Bennett, 613 F.2d 127, 128 (5th Cir. 1980); Delaney v. Giarrusso, 633 F.2d 1126, 1128 (5th Cir. 1981); Courtney v. Reeves, 635 F.2d 326, 330 (5th Cir. 1981); Richardson v. Fleming, 651 F.2d 366, 373 (5th Cir. 1981).

When a state prisoner attacks the fact or length of his confinement, the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S. Ct. 1827, 1836, 36 L. Ed. 2d 439, 450 (1973). The Supreme Court found that by allowing a prisoner to challenge his confinement under a § 1983 suit in federal court, Congress' intent that the states be given the first chance to decide such suits would be frustrated. Although a state prisoner may generally bring a claim for damages under § 1983 without first exhausting state remedies, "where the basis of the claim goes to the constitutionality of the state court conviction", habeas corpus is the exclusive cause of action and the attendant requirement of exhaustion of state remedies controls. Fulford v. Kline, 529 F.2d at 381.

(T)he propriety of a prisoner's § 1983 action is not to be determined solely on the basis of the relief sought, i.e., monetary damages as opposed to relief from confinement, but instead the federal court must examine the basis of the complaint and determine whether the claim, if proven, would factually undermine or conflict with validity of the state court conviction which resulted in the prisoner's confinement. If the basis of the § 1983 claim does go to the constitutionality of the state court conviction, the exclusive remedy is habeas corpus relief with the comity inspired prerequisite of exhaustion of state remedies.

Richardson v. Fleming, 651 F.2d at 373. See Stevens v. Heard, 674 F.2d 320, 323 (5th Cir. 1982); Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir. 1981); Delaney v. Giarrusso, 633 F.2d at 1128.

Caldwell asserts that this is not a habeas corpus action and therefore not subject to the exhaustion requirements because (1) she is not here challenging her conviction, currently on appeal in the Texas Criminal Court of Appeals, which appeal will not reach the issue here raised, and (2) Caldwell is not currently confined. From Caldwell's initial complaint and the substance of her claim against Judge Line as lacking jurisdiction, it is obvious that she is attacking the validity of her state court conviction. Her claim that Judge Line denied her of property without due process because he was without authority and without jurisdiction brings into question the entire validity of the state court conviction and thus under Fulford, supra, exhaustion of state remedies is required. The central issue involves a determination under state law of whether Judge Line was properly presiding, an issue that should first be addressed by the state courts. While Caldwell attempts to squeeze her claim into the § 1983 mold, clearly it is in essence an attack on the constitutionality of her conviction. That Caldwell is not confined does not remove her eligibility for habeas corpus relief and thus the requirement that she exhaust state remedies. Habeas corpus is available to those who are "in custody", Conner v. Pickett, 552 F.2d 585, 587 (5th Cir. 1977), a condition which appears to exist since Caldwell received a probated five-year sentence in 1979. From the record there is no indication that the probation has been terminated and thus Caldwell is eligible for habeas corpus relief. Since Caldwell is eligible for habeas corpus relief and her claim in reality attacks the validity of the state court judgment, she must first exhaust all state remedies, including the pending direct criminal appeal.

Although the District Court reached the merits of Caldwell's claim, we must dismiss this petition since no claims have been exhausted. See Bufalino v. Reno, 613 F.2d 568, 571 (5th Cir. 1980).2 Caldwell must first present her claims to state court and provide that court with an opportunity to pass on the merits of her claim.3

REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.