* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 24 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARKELL ARCHILTA,

Petitioner-Appellant, No. 04-6125

v. (W.D. of Okla.) STATE OF OKLAHOMA,

Respondent-Appellee. (D.C. No. CV-04-162-R)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **

Petitioner-Appellant Markell Archilta, a state prisoner appearing pro se , appeals the dismissal of his “Petition for Extraord inary Writ.” The district court construed Archilta’s petition as (1) seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 and (2) asserting a federal claim under either 42 U.S.C. § 1983 or 28 U.S.C. § 1331. The district court dismissed the habeas e lements of the petition-2-

for failure to exhaust state court remedies, and di smissed the remaining elements under 28 U.S.C. § 1915(e)(2)(B). Exercising jurisdiction pursuantto 28 U.S.C. §§ 1291 and 2253, we agree with the district court’ s construction of the petition, deny Archilta’s request for a certificate of appeal ability (COA), and affirm the dismissal of the case. Background Archilta is a Native American incarcerated in an Ok lahoma prison after being sentenced to six, concurrent, thirty-year sen tences for felony convictions in April 1990. [R/R at 2] In February 2004, Archilta s ought an “Extraordinary Writ” in the district court pursuant to 28 U.S.C. §§ 1343(a) and 1651, contending that his constitutional and treaty rights had been violated by Oklahoma’s arrest, prosecution, and incarceration of him for crimes co mmitted on Indian lands over which Oklahoma has no criminal jurisdiction. He al so sought class representative status on behalf of all other Oklahoma citizens who are Native Americans and are incarcerated in Oklahoma prisons for crimes committ ed in Oklahoma. Archilta named as defendants “the State of Oklahoma and unkn own Officials (State, County, City) who are citizens of the State of Okla homa, and [are] employed as a State, County, City employee.” A magistrate judge recommended that the petition be dismissed for two reasons. First, he concluded that the portion of t he petition challenging-3-

Oklahoma’s jurisdiction should be dismissed withoutprejudice because it failed to establish either that Archilta had exhausted state remedies or that an exception to the exhaustion requirement applied. Second, to the extent the petition sought relief based on Archilta’s allegedly unconstitution al convictions, the magistrate judge found it should be construed to assert a claim under 42 U.S.C. § 1983 and be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The district court adopted the recommendations in their entirety.
Discussion On appeal, Archilta raises several chall enges to the decision of the district court. First, he claims that the court erred by co nstruing his pleadings as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and for dismissing his action for failure to exhaust state remedies. Second, he argues that the court erred by construing his pleadings as raising a § 1983 claim and dismissing them based on Eleventh Amendment immunity. Finally, Archilta seeks clarification regarding the district court’s denial of his class action request, asks this court to appoint counsel, and asserts the dist rict court erred in declining to consider his amended objections to the magistrate j udge’s recommendations. I. Habeas Corpus Claim A. Applicability of § 2254-4-

Although Archilta filed the petition for an “Extrao rdinary Writ” pursuant to 28 U.S.C. §§ 1343(a) and 1651, the district court construed it in part as a § 2254 habeas corpus petition because it “clearly seeks ha beas corpus relief in the form of Petitioner’s release from [state custody] and th e invalidation of his convictions.” [R/R at 2] Archilta nonetheless argue s on appeal that the extraordinary nature of his case indicates that § 2254 does not apply. Specifically, he contends (1) that claims for treaty violations are not typical, (2) he would have filed a § 2254 petition if he had intended to do so, and ( 3) the petition “at its core” does not seek to challenge h is convictions or sentence, “but rather seeks answers to federal questions of law.” [Br. at 9] Reviewing de novo the district court’s determination that § 2254 applies to the petition, see United States v. Fillman , 162 F.3d 1055, 1056 (10th Cir. 1998) (“[w]e review de novo the district court's interpre tation of a federal statute"), we hold that the district court properly construed the petition as seeking a writ of habeas corpus pursuant to § 2254. The petition filed in the district court sought rel ief in the form of a declaratory judgment that “[a]ll State Judgment and Sentences are Void for want of Jurisdiction over Indians whose crime was committed in Indian Country as defined by federal Law.” [Petition at 16] Thus, Ar chilta seeks to void his sentence and be released from prison. As a result, his sole avenue of federal-5-

relief is a petition for habeas corpus. See Preiser v. Rodriguez , 411 U.S. 475, 500 (1973) (holding that where state prisoner challenge s fact or duration of imprisonment and seeks release from that imprisonme nt, sole federal remedy is a writ of habeas corpus); see also Pennsylvania Bureau of Corr. v. United Sta tes Marshals Serv. , 474 U.S. 34, 43 (1985) (“The All Writs Act [conta ined in 28 U.S.C. § 1651] is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute spec ifically addresses the particular issue at hand, it is that authority, and not the Al l Writs Act, that is controlling.”) (alteration added). B. Dismissal of the habeas claim for failure to exhaust state remedies Archilta contends that even if the district court p roperly construed the petition in part as raising a § 2254 claim, he is entitled to a COA on the quest ion whether the district court properly dismissed the c laim for failure to exhaust state remedies. This court may only issue a COA if a pet itioner “has made a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel , 529 U.S. 473, 483–84 (2000); United States v. Springfield , 337 F.3d 1175, 1177 (10th Cir. 2003). Where a di strict court dismisses a petition on procedural grounds, “ a COA should issue when the prisoner shows, at least, that jurists of reason wo uld find it debatable whether the petition states a valid claim of the denial of a co nstitutional right and that jurists-6-

of reason would find it debatable whether the distr ict court was correct in its procedural ruling.” Slack , 529 U.S. at 484. Though the petitioner must sati sfy each prong of this test in order for this court to hear his appeal, we are free to dispose of the application on an issue “whose answe r is more apparent from the record and arguments.” Id. at 485. The district court dismissed the § 2254 claim after determining that (a) Archilta failed to establish exhaustion of state re medies, and (b) he did not show an exception to the exhaustion requirement should apply. Archilta argues, as he did before the district court, that requiring him t o return to the state courts is futile because the courts do not have jurisdiction over him as an Indian who allegedly committed his crimes on Indian land. He further argues that pursuant to the Medicine Lodge Peace Treaty of 1867 he has alre ady exhausted the only administrative process required by filing a complai nt with the Bureau of Indian Affairs. After thoroughly reviewing the record in this case, we agree that Archilta has failed to show that jurists of reason would fin d it debatable whether the district court was correct in its procedural ruling . We have already determined that the district court properly construed the petition as asserting a § 2254 claim. As such, the petition is subject to the exhaustion requirements of § 2254(b)(1). Archilta has failed either to establish that he exh austed the remedies available in-7-

the Oklahoma state courts or that his failure to ex haust should be otherwise excused. See Miranda v .Cooper , 967 F.2d 392, 398 (10th Cir. 1992) (state habeas petitioner has burden of establishing exhaus tion or application of exception to exhaustion requirement). Archilta’s claim that returning to the state courts would be futile because Oklahoma does not have jurisdiction over him as an Indian who committed crimes on Indian land begs the initial question as to whet her the crimes were in fact committed on Indian land. As determined by the di strict court, Oklahoma state courts can and do determine whether they have juris diction over Indians for crimes allegedly committed in Indian Country. See, e.g. , Cravatt v. State , 825 P.2d 277, 280 (Okla. Crim. App. 1992) (resolving ju risdictional question for crime committed in Indian Country); State v. Klindt , 782 P.2d 401, 403 (Okla. Crim. App. 1989) (stating general rule that “the State of Oklahoma d oes not have jurisdiction over crimes committed by or against an Indian in Indian Country”); see also DeCoteau v. District County Court , 420 U.S. 425, 427–28 (1975) (holding South Dakota state courts properly exercis ed jurisdiction over acts by Indians not occurring on Indian land). Furthermore, the district court also properly decli ned to determine the applicability of the one-year period of limitations for filing a habeas petition pursuant to § 2254. See 28 U.S.C. § 2244(d)(1). As indicated by the court,-8-

Archilta is eligible to petition for an appeal out of time under Oklahoma law, see Okla. Stat. Ann., tit. 22, Ch. 18, App., Rule 2.1(E ), which, if granted, would effectively restart the filing period under § 2244(d)(1). See Orange v. Calbone , 318 F.3d 1167, 1173 (10th Cir. 2003). We, therefor e, affirm the district court’s dismissal without prejudice of the portion of the p etition properly construed as a § 2254 habeas application. II. Injunctive and Declaratory Relief Claims The magistrate judge construed the petition in partto assert a claim for damages or equitable relief under 42 U.S.C. § 1983. The district court noted that claims for treaty-based rights may be cognizable under § 1983. However, the court ultimately determined that the claims were barred under Heck v. Humphrey , 512 U.S. 477, 486–87 (1994), and the Eleventh Amendment regardless of whether they were construed under § 1983 or as federal claims over which the court h ad jurisdiction under 28 U.S.C. § 1331. Archilta’s claim that the district court erred in determining that § 1983 applied to his petition misconstrues the court’s or der. Though the district court adopted the magistrate judge’s recommendations in t heir entirety, and the magistrate judge found § 1983 applicable, the district court’s order conc luded that whether cognizable under § 1983 or § 1331, the claims seeking damages as well as equitable relief were barred under the reasoning of Heck . We decline at this-9-

time to determine whether claims alleging violation s of treaty rights may be brought under § 1983 and instead adopt the approach of the distr ict court. As such, whether construed under § 1983 or § 1331, we hold that the district court properly found the claims barred under Heck

. Heck teaches that where a state prisoner brings a claim seeking damages for an allegedly unconstitutional conviction, the claim is not cognizable under § 1983 and must be dismissed unless plaintiff can demonstr ate that the conviction has already been invalidated. See 512 U.S. at 486–87. The Supreme Court extended the rationale of Heck to encompass a § 1983 claim seeking declaratory relief in Edwards v. Balisok , 520 U.S. 641, 648 (1997), and this court has prev iously applied Heck to bar 42 U.S.C. §§ 1983 and 1985 claims seeking declaratory and injunctive relief. See Lawson v. Engleman , No. 03-7012, 2003 WL 21300347, *1, *1 n.2 (10th Cir. 2003) (unpublished opinion). Here, Archilta seeks relief in multiple forms, including, a “Procedure Provided by the Court for Compensation, Punitive orotherwise for Injury, Loss, Violation of rights, protections and immunities of each Individual Indian, against each Official State, County, City, other Bad Men/Wh ite Men” and “Return of any/all Money, Property, Equity Illegally/Unlawfull y taken from Indians.” Though the petition is nebulous, we interpret these claims for damages and equitable relief as necessarily implying the invali dity of Archilta’s convictions.-10-

Therefore, whether we construe the applicable cause of action under § 1983 or § 1331, the rationale of Heck applies to bar the claims. See Beck v. City of Muskogee Police Dep’t , 195 F.3d 553, 557 (10th Cir. 1999) (noting that Heck should apply “when the concerns underlying Heck exist,” which include “those claims that would necessarily imply the invalidity of any conviction”). Since Archilta’s claims necessarily imply the invalidity of his convictions and he cannot demonstrate that his convictions have already been invalidated, the district court properly held that the claims must be dismissed pur suant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Archilta also contends that the district court erro neously excluded his claims against state officials under the Eleventh A mendment because state and local officials are only entitled to qualified immu nity. This argument also misconstrues the district court’s decision. The co urt only found the Eleventh Amendment applicable to the damages claims against the state itself. The court barred all other claims for damages and equitable r elief, including those against the state and local officials, under Heck . Hence, Archilta’s qualified immunity argument is without merit because the court did notfind the officials entitled to immunity. Accordingly, we affirm the district court’s determination that the state is immune from suit for damages under the Eleventh Amendment, see Edelman v.-11-

Jordan , 415 U.S. 651, 662–63 (1974), and the dismissal of the petition pursuant to § 1915(e)(2)(B).
III. Other Claims A. Request for class action certification As discussed above, Archilta’s claims for damages a nd equitable relief are barred by Heck and the Eleventh Amendment. He furthermore has fai led to meet the requirements of Fed. R. Civ. P. 23(a) and (b) f or class certification. Therefore, the district court’s denial of his reque st for class action certification is affirmed. B. Request for court appointed counsel Appointment of counsel is within the discretion of the district court and only in those extreme cases where the lack of couns el results in fundamental unfairness will the district court’s decision be overturned. See McCarthy v. Weinberg , 753 F.2d 836, 839 (10th Cir. 1985). Here, Archil ta has failed to establish that the lack of counsel resulted in a fu ndamentally unfair disposition of his case. See United States v. Masters , 484 F.2d 1251, 1253 (10th Cir. 1973) (burden on applicant to establish appointment of co unsel warranted). Thus, the district court’s denial of the request for counsel is affirmed. C. Archilta’s amended objections1 We assume, based on the fact that the district cour t ordered the amended

objections stricken on March 31, 2004, Archilta is actuall y claiming that he filed the objections on March 24. Even if this is true, the filing occurred after the March 16 deadline and the district court properly c oncluded that the amended objections were untimely. -12- Pursuant to 28 U.S.C. § 636(b)(1) and W.D. Okla. R. 72.1, Archilta had until March 16, 2004 to file objections to the magi strate judge’s findings. He first filed objections on March 16, which the distr ict court considered in ruling on the petition. According to the district court’s do cket, Archilta filed amended objections on March 26, which the district court or dered stricken as untimely. He argues on appeal that the district court erred in r efusing to consider his amended objections because he placed the objections into th e care of institutional staff in a timely manner on April 24, 2004. 1 [Br. at 8] Failure to make a timely objection to the magistrat e judge’s findings or recommendations waives appellate review of both fac tual and legal questions. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). However, thi s rule is inapplicable either when the interests of j ustice so dictate or “when the magistrate’s order does not apprise the pro se liti gant of the consequences of a failure to object to findings and recommendations.” Id . We have reviewed Archilta’s amended objections and conclude that the interests of justice do not dictate that the objections be considered in dispos ing of this case since they too are without merit. Further, Archilta’s pro se stat us does not alter this-13-

determination because the magistrate judge’s reportmade clear that failure to reply in a timely manner would constitute waiver. [ R/R at 8] Therefore, we hold that the district court properly declined to consider the amended objections.
Conclusion For the foregoing reasons, we affirm the district c ourt’s dismissal of the case and deny Archilta’s request for a COA. Entered for the Court Timothy M. Tymkovich Circuit Judge