Timothy Sperl, Plaintiff-appellant, v. George Deukmejian, in His Capacity As Attorney General Forthe State of California; and John Van De Kamp, Inhis Capacity As District Attorney Forthe County of Los Angeles,defendant-appellee, 642 F.2d 1154 (9th Cir. 1981)

Sperl sought declaratory relief under 28 U.S.C. § 2201 and injunctive relief under 42 U.S.C. § 1983 to invalidate his 1974 state criminal convictions because of alleged prosecutorial misconduct. The district court dismissed his claims. Sperl v. Deukmejian, 482 F. Supp. 1026 (C.D. Cal. 1980). We affirm.

Sperl's claim under § 2201 was properly dismissed. Declaratory relief is not available in federal court to attack a state criminal conviction, Ruip v. Kentucky, 400 F.2d 871, 872 (6th Cir. 1968), cert. denied, 395 U.S. 911, 89 S. Ct. 1755, 23 L. Ed. 2d 224 (1969); Booker v. Arkansas, 380 F.2d 240, 242 (8th Cir. 1967); Shannon v. Sequeechi, 365 F.2d 827, 829 (10th Cir. 1966), cert. denied, 386 U.S. 481, 87 S. Ct. 1175, 18 L. Ed. 2d 225 (1967). Sperl argues that his complaint should therefore be treated as a petition for habeas corpus relief under 28 U.S.C. § 2254. Habeas corpus relief is not appropriate because Sperl was not in custody when he filed his complaint. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 1559, 20 L. Ed. 2d 554 (1968); Stone v. Powell, 428 U.S. 465, 468, 96 S. Ct. 3037, 3040, 49 L. Ed. 2d 1067 (1976).

Sperl's claim under § 1983 was also properly dismissed. Sperl's claim of prosecutorial misconduct was tried and rejected in state habeas corpus proceedings. The doctrine of collateral estoppel therefore precludes reconsideration of the issue in a federal civil rights action, even when federal habeas corpus relief is not available. Allen v. McCurry, --- U.S. ----, ----, 101 S. Ct. 411, 419, 66 L. Ed. 2d 308 (1980).

AFFIRMED.