UNITED STATES COURT OF APPEALS
Filed 7/2/96
TENTH CIRCUIT
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TONY LAMAR VANN, )
)
Plaintiff-Appellant, )
v. ) No. 95-5221
) (D.C. No. 95-C-906-C)
WILLIAM H. MATTINGLY; DAVID ) (N. Dist. of Okla.)
GAMBILL, Judge; RENE P. HENRY, )
Asst. D.A.; RON WILLIAMS, ALLEN C. )
COWDERY, Attorney; CURLEY HIGGINS, )
Attorney; STATE OF OKLAHOMA; OSAGE )
COUNTY, OKLAHOMA; CITY OF TULSA, )
OKLAHOMA, )
)
Defendants-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT and MURPHY, Circuit Judges.
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After examining the briefs and appellate record, this panel
has determined unanimously to honor the parties’ request for a
decision on the briefs without oral argument. See Fed. R. App. P.
34(f); Tenth Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Tony Lamar Vann (Vann) appearing pro se, appeals from the
district court’s order dismissing his civil rights action filed
pursuant to 42 U.S.C. § 1983, et seq., without prejudice, under 28
*
This Order and Judgment is not binding precedent, except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 Tenth Cir. R. 36.3.
U.S.C. § 1915(d).
On September 23, 1994, Vann was sentenced, following trial to
the District Court of Osage County, Oklahoma, to a term of seven
(7) years imprisonment in the Oklahoma Department of Corrections
for Assault (Count I), and one year in the Osage County Jail for
Unlawful Possession of Marijuana with Intent to Distribute (Count
II). Count II was ordered to run consecutive to Count I. Vann was
also convicted of Unlawful Possession of a Firearm After Former
Conviction under Count III. So far as we can ascertain, Vann’s
appeal from that conviction is still pending in the Oklahoma Court
of Criminal Appeals.
In his pro se civil rights complaint, Vann sought actual and
punitive damages for false imprisonment. He seems to allege that
he did not receive effective assistance of counsel during his state
criminal trial predicated upon his claim here that his Osage County
sentence was enhanced by a prior Texas conviction which was more
than ten (10) years old. Vann has raised this same contention in
his criminal appeal.
Vann’s § 1983 suit was brought against Judges Mattingly and
Gambill, Assistant District Attorney Henry, Attorneys Cowdery and
Higgins, the State of Oklahoma, and Williams as head of the Tulsa
Housing Assistance Corporation. He alleged malicious prosecution
and false and wrongful imprisonment. The criminal charges against
Vann were brought following the forced vacation and moving of
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Vann’s two businesses located at 814 and 816 North Osage Drive,
Tulsa, Oklahoma, upon thirty days notice, without compensation for
moving.
The district court held that: the State of Oklahoma is not a
“person” for purposes of § 1983; the judges and assistant district
attorney are entitled to absolute immunity; and that conduct of
Cowdery and Higgins, as defense counsel, does not constitute action
under color of state law for purposes of a § 1983 violation. The
court also observed that under Heck v. Humphrey, 114 S.Ct. 2364,
2372 (1994), Vann could not recover damages in a § 1983 action
based upon an alleged unconstitutional state court conviction until
it has been reversed, expunged, or declared invalid.
On appeal, Vann argues that summary judgment is only warranted
in a conspiracy action when the evidence is so one-sided as to
leave no room for any reasonable difference of opinion as to how
the case should be decided. He asks that we hold that he is in
prison illegally.
Treating plaintiff-appellant’s pro se pleadings liberally,
Haines v. Kerner, 404 U.S. 519, 520 (1972), we review a district
court’s dismissal for failure to state a claim by accepting all
factual allegations of the plaintiff as true and resolving all
reasonable inferences in his favor. Arnold v. McClain, 926 F.2d
963, 965 (10th Cir. 1991). We must affirm the district court’s
dismissal if it appears beyond doubt that the plaintiff cannot
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prove any set of facts in support of his claims entitling him to
relief. Id.
While we agree with the district court’s order of dismissal of
Vann’s § 1983 action on the merits substantially for the reasons
set forth in the court’s Order of October 16, 1995, we observe that
the court should not have entertained the action with knowledge
that Vann’s criminal conviction-sentence was on appeal to the
Oklahoma Criminal Court of Appeals.
“We are free to affirm a district court’s dismissal on any
grounds for which there is a record sufficient to permit
conclusions of law, even grounds not relied upon by the district
court.” United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
1994); Griess v. Colorado, 841 F.2d 1042, 1047 (10th Cir. 1988).
28 U.S.C. § 2254(b) provides that federal habeas corpus relief
is not available to a state prisoner “unless it appears that the
applicant has exhausted the remedies available in the courts of the
state or that there is either an absence of available state
corrective process or the existence of circumstances rendering such
process ineffective to protect the rights of the prisoner.” An
action under § 1983 is a proper remedy for a state prisoner making
a constitutional challenge to conditions of his confinement, but
not of the fact or duration of his confinement. Preiser v.
Rodriguez, 411 U.S. 475 (1973). In Heck, the Supreme Court held
that “habeas corpus is the exclusive [federal] remedy for a state
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prisoner who challenges the fact or duration of his confinement and
seeks immediate or speedier release, even though such a claim may
come within the literal terms of § 1983.” 111 S.Ct. at 2369.
The burden of showing exhaustion of state remedies in
accordance with 28 U.S.C. § 2254 rests on the petitioner seeking
federal habeas relief. Bond v. Oklahoma, 546 F.2d 1369 (10th Cir.
1976). Vann has failed to carry that burden. The purpose of the
exhaustion requirement is to prevent unnecessary conflicts between
state and federal courts. Picard v. Connor, 404 U.S. 270 (1971).
AFFIRMED.
The mandate shall issue forthwith.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge