Jihad Caliph Muhammad, Plaintiff-appellant, v. James Gomez; Daniel E. Lungren; P.l. Kernan; Pete Wilson,defendants-appellees, 120 F.3d 268 (9th Cir. 1997)

MEMORANDUM^* 

Jihad Caliph Muhammad, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous.¹  We have jurisdiction pursuant to 28 U.S.C. § 1291, and we dismiss this appeal.

Muhammad alleged that the application of the new parole review procedures, rather than the procedures in effect when he was sentenced, violated the Due Process Clause and the Ex Post Facto Clause. Muhammad also alleged that the defendants conspired to deny him parole. Muhammad sought damages, declaratory relief, and injunctive relief.

When a state prisoner challenges the legality of his custody and the relief he seeks is an earlier release date, his sole federal remedy is a writ of habeas corpus. See Preiser v. Rodriquez, 411 U.S. 475, 500 (1973). To the extent that Muhammad seeks an earlier release date, his complaint must be construed as a petition for writ of habeas corpus. So construed, Muhammad's complaint must be dismissed because he failed to allege that he has exhausted the available state remedies. Insofar as Muhammad seeks damages for the allegedly unconstitutional denial of parole, his claim must be dismissed because he failed to allege that his sentence has been reversed, expunged, or called into question by the issuance of a writ of habeas corpus. See Heck v. Humphrey, 114 S. Ct. 2364. 2372 (1994). The district court did not abuse its discretion by finding that his complaint was frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

DISMISSED.