NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.
Plaintiff Steven E. Moore filed a combined 42 U.S.C. § 1983 civil rights action and 28 U.S.C. § 2254 habeas corpus petition and alleged Defendants violated his Fifth, Sixth, and Fourteenth Amendment rights by refusing to rule on his state habeas petition. The district court concluded Plaintiff failed to demonstrate that Defendants deprived him of a right secured by the United States Constitution, Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970), and dismissed the § 1983 action as frivolous under 28 U.S.C. § 1915(d). The court found that Plaintiff had failed to exhaust his state remedies, and that his state habeas petition was pending, and therefore dismissed Plaintiff's § 2254 petition. See 28 U.S.C. § 2254(b) ("An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.").
On appeal, Plaintiff maintains the district court erred by dismissing his § 1983 action and his § 2254 petition. We have reviewed Plaintiff's brief and the entire record before us. Based upon our review of the record, we find no reversible error and affirm for substantially the same reasons set forth in the district court's order.
AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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
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); 10th Cir. R. 34.1.9. The case therefore is ordered submitted without oral argument