U.S. Court of Appeals for the Eighth Circuit, 2004

Jason Edward Fenner v. Candis Taylor

Jason Edward Fenner v. Candis Taylor
U.S. Court of Appeals for the Eighth Circuit · Decided June 3, 2004 · Arnold, Fagg, Smith
99 F. App'x 82

Jason Edward Fenner v. Candis Taylor

Opinion

PER CURIAM.

Jason Edward Fenner appeals the district court’s 1 preservice dismissal of his 42 *83 U.S.C. § 1983 action against a prosecutor and two public defenders involved in state criminal proceedings against him. As relief, Mr. Fenner indicated he wanted a jury trial and a different attorney in his criminal case.

Having carefully reviewed the record, we conclude that dismissal was proper. Mr. Fenner’s allegations and the relief he requested indicate that he was in effect challenging the validity of his guilty plea and conviction. The sole federal remedy for a state prisoner bringing such a challenge is a writ of habeas corpus, see Preiser v. Rodriguez, 411 U.S. 475, 499-500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and there is no indication in the record that Mr. Fenner has exhausted his state court remedies, see 28 U.S.C. § 2254(b)(1)(A); Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998) (§ 2254 petitioner has burden to show all available state remedies have been exhausted or exceptional circumstances exist). Accordingly, we affirm, but we modify the dismissal to be without prejudice. See 8th Cir. R. 47B. We also deny Mr. Fenner’s motion for appointment of counsel.

1

. The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas, adopting the report and recommendations of the Honor *83 able Beverly Stites Jones, United States Magistrate Judge for the Western District of Arkansas.

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