Baker v. Keating ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 3 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
GARY WAYNE BAKER,
Plaintiff-Appellant,
v.
No. 00-6446
(W. District of Oklahoma)
FRANK KEATING, Governor;
(D.C. No. 00-CV-920-T)
OKLAHOMA DEPARTMENT OF
CORRECTIONS; OKLAHOMA
PARDON AND PAROLE BOARD,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, 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.
*
This order and judgment is not binding precedent, except under the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.
Gary Wayne Baker, an Oklahoma state prisoner proceeding pro se and in
forma pauperis, appeals the district court’s dismissal of his 42 U.S.C. § 1983 civil
rights complaint. In his civil rights complaint, Baker alleged that the Oklahoma
Truth in Sentencing Act (the “Act”) and subsequent legislation repealing the Act
constituted unconstitutional ex post facto laws. Baker named as defendants
Governor Frank Keating, “Oklahoma Legislative Officials,” the Oklahoma
Department of Corrections, and the Oklahoma Pardon and Parole Board and
sought various forms of injunctive and declaratory relief. The district court
dismissed Baker’s complaint on the ground that it failed to state a claim upon
which relief could be granted. In so doing, the district court first noted that
because Baker’s claims implicated the execution of his sentence, the claims had to
be brought in a habeas petition and were not cognizable under § 1983. The
district court nevertheless proceeded to determine that Baker’s claims failed to
state a claim on the merits.
Upon de novo review, this court affirms the district court’s order of
dismissal on the ground that the claims asserted all challenge the execution of
Baker’s sentence and must, therefore, be brought in a 28 U.S.C. § 2241 habeas
petition. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (holding
that claims by state prisoner challenging the execution of his sentence must be
brought under § 2241); Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994)
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(holding that a state prisoner could not seek declaratory or injunctive relief under
§ 1983 where the remedy sought was a speedier release from prison because such
relief was only available “in a habeas corpus action after exhausting state judicial
remedies”). Because the claims set forth in Baker’s complaint are not cognizable
under § 1983, this court AFFIRMS the district court’s dismissal of Baker’s
complaint for failure to state a claim. 1
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
1
This court notes that the district court’s dismissal of Baker’s complaint on
the ground that it failed to state a claim constitutes a strike for purposes of 28
U.S.C. § 1915(g). See 28 U.S.C. § 1915(e)(2)(B)(ii). Baker is reminded that if
he accrues three such strikes, he will be precluded from proceeding in forma
pauperis in civil actions unless he is under imminent danger of serious physical
abuse. See id. § 1915(g).
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