* This Order and Judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. 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, th is panel has determined unanimously to honor the parties’ re quest for a decision on the briefs without oral argument. SeeFed. 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 prose , appeals from the district court’s order dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983, et seq., without prej udice, under 28-2-

U.S.C. § 1915(d). On September 23, 1994, Vann was sentenced, followin g trial to the District Court of Osage County, Oklahoma, to a term of seven (7) years imprisonment in the Oklahoma Department o f Corrections for Assault (Count I), and one year in the Osage Co unty Jail for Unlawful Possession of Marijuana with Intent to Dis tribute (Count II). Count II was ordered to run consecutive to Co unt I. Vann was also convicted of Unlawful Possession of a Firearm After Former Conviction under Count III. So far as we can ascer tain, Vann’s appeal from that conviction is still pending in the Oklahoma Court of Criminal Appeals. In his prosecivil 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 w hich 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 Matti ngly and Gambill, Assistant District Attorney Henry, Attorne ys Cowdery and Higgins, the State of Oklahoma, and Williams as hea d of the Tulsa Housing Assistance Corporation. He alleged malicio us prosecution and false and wrongful imprisonment. The criminal charges against Vann were brought following the forced vacation andmoving of-3-

Vann’s two businesses located at 814 and 816 North Osage Drive, Tulsa, Oklahoma, upon thirty days notice, without c ompensation for moving. The district court held that: the State of Oklahomais not a “person” for purposes of § 1983; the judges and ass istant district attorney are entitled to absolute immunity; and tha t conduct of Cowdery and Higgins, as defense counsel, does not c onstitute action under color of state law for purposes of a § 1983 v iolation. 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 onl y warranted in a conspiracy action when the evidence is so one- sided as to leave no room for any reasonable difference of opin ion as to how the case should be decided. He asks that we hold t hat he is in prison illegally. Treating plaintiff-appellant’s prosepleadings liberally, Haines v. Kerner , 404 U.S. 519, 520 (1972), we review a district court’s dismissal for failure to state a claim by a ccepting all factual allegations of the plaintiff as true and re solving all reasonable inferences in his favor. Arnold v. McCl ain , 926 F.2d 963, 965 (10th Cir. 1991). We must affirm the dist rict court’s dismissal if it appears beyond doubt that the plain tiff cannot-4-

prove any set of facts in support of his claims ent itling him to relief. Id

. While we agree with the district court’s order of d ismissal of Vann’s § 1983 action on the merits substantially fo r the reasons set forth in the court’s Order of October 16, 1995, we observe that the court should not have entertained the action wi th knowledge that Vann’s criminal conviction-sentence was on app eal 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 p ermit conclusions of law, even grounds not relied upon bythe 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 co rpus relief is not available to a state prisoner “unless it app ears that the applicant has exhausted the remedies available in t he courts of the state or that there is either an absence of availab le state corrective process or the existence of circumstance s rendering such process ineffective to protect the rights of the pr isoner.” An action under § 1983 is a proper remedy for a state prisoner making a constitutional challenge to conditions of his con finement, but not of the fact or duration of his confinement. Pr eiser v. Rodriguez , 411 U.S. 475 (1973). In Heck , the Supreme Court held that “habeas corpus is the exclusive [federal] reme dy for a stateprisoner who challenges the fact or duration of his confinement and

seeks immediate or speedier release, even though su ch 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 petit ioner 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 co nflicts 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