*This Order and Judgment is not binding precedent, except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.

UNITED STATES COURT OF APPEALS

Filed 7/2/96

TENTH CIRCUIT

______

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. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT and MURPHY, Circuit Judges.

______

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
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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
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