Theodore Ruark, Petitioner-appellant, v. Frank Gunter, and Gale A. Norton, Attorney General of Thestate of Colorado, Respondents-appellees, 946 F.2d 901 (10th Cir. 1991)

Before McKAY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges.^* 

ORDER AND JUDGMENT^** 

EBEL, Circuit Judge.

This is an appeal from a dismissal of a petition for habeas corpus. However, we treat the Petitioner's pro se pleadings as an application for relief under 42 U.S.C. § 1983, and not as a habeas petition. This treatment is warranted by the fact that, prior to the district court's dismissal, the Petitioner struck all counts which would warrant release as a remedy. His only remaining claim is that his Fourteenth Amendment Due Process rights had been abridged by the refusal of the state to grant his request for a free record of a trial held over 28 years ago. The relief he seeks is the record itself, not release. Accordingly, his petition is properly reviewed as one under § 1983, precluding any requirement of exhaustion of state remedies. See Monroe v. Pape, 365 U.S. 167, 183 (1961).

The Petitioner, evidently, had hoped to use this record to attack the 1962 conviction on the grounds of ineffective assistance of counsel. The record, however, contains no specific allegations of misconduct by his counsel in that proceeding.

Where, as here, an indigent petitioner makes no particularized showing that his rights have been violated, but merely makes conclusory allegations to that effect, he has no constitutional right to a record for the purposes of making a collateral attack on a conviction. See United States v. Malcolm, 426 U.S. 317, 326-27, 328 (1976) (plurality opinion with Blackmun, J., concurring); Hines v. Baker, 422 F.2d 1002, 1006-07 (10th Cir. 1970).