                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS                  June 13, 2011
                                     TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                         Clerk of Court


 MELVIN ELLIS HOLLY,

           Plaintiff-Appellant,
 v.                                                          No. 11-7004
                                                    (D.C. No. 6:10-CV-00405-JHP)
 WARREN GOTCHER, d/b/a Gotcher                               (E.D. Okla.)
 Law Firm; DENNIS DELA, individually;
 ROY ALFORD, individually; LATIMER
 COUNTY BOARD OF COUNTY
 COMMISSIONERS, STATE OF
 OKLAHOMA,

           Defendants-Appellees.



                                  ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
submitted without oral argument.

       Plaintiff/appellant Melvin Ellis Holly appeals the district court’s order

characterizing his complaint as a second or successive motion to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255 and transferring the motion to this court.

We conclude that Holly’s complaint was an attempt to bring claims for damages pursuant

to 42 U.S.C. § 1983. However, Holly states no viable claims under § 1983. We,

therefore, remand to the district court with instructions to vacate its order characterizing

Holly’s complaint as a second or successive § 2255 motion and then to dismiss Holly’s

complaint without prejudice.

                                               I

       Holly, a former sheriff, was convicted on fourteen federal counts relating to the

sexual abuse of inmates, employees, and an employee’s daughter at the Latimer County,

Oklahoma jail. On direct appeal, this court vacated four of Holly’s convictions due to a

jury instruction error. Holly subsequently filed a 28 U.S.C. § 2255 motion, alleging

ineffective assistance of counsel and other constitutional errors. The district court

dismissed Holly’s habeas petition and denied a certificate of appealability. This court

affirmed. United States v. Holly, 364 F. App’x 471 (10th Cir. 2010) (unpublished).

       Holly then filed the instant complaint naming his attorney, the Latimer County

Board of Commissioners, and three individual commissioners as defendants. Holly

alleges that the defendants violated his constitutional rights by failing to investigate his




                                               2
case and providing him ineffective assistance of counsel.1 Holly asks the court to require

the defendants to provide him with the services of an attorney and private investigators,

and also seeks punitive damages. He does not specifically seek to have his conviction

vacated. The district court issued an order construing Holly’s complaint as a motion to

vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Because Holly had

previously filed a § 2255 motion, the district court transferred the motion to this court

pursuant to 28 U.S.C. § 2244(b)(3)(A) and 28 U.S.C. § 1631. Holly appealed the district

court’s characterization of his complaint, arguing that he did not seek to bring a § 2255

motion.

                                             II

       Because Holly does not actually seek to have his conviction vacated and, instead,

seeks damages and the funding of counsel and private investigators, his pleading is more

properly characterized as an attempt to bring claims under 42 U.S.C. § 1983. Cf. United

States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006) (noting that, when determining

whether a pleading is a § 2255 motion or a Fed. R. Civ. P. 60(b) motion, “[i]t is the relief

sought, not [the] pleading’s title, that determines whether the pleading is a § 2255

motion”). Nonetheless, we conclude that any error by the district court in characterizing

Holly’s petition was harmless because Holly’s § 1983 claims are barred under the rule of


       1
        Holly also alleges that he was beaten and raped in prison. However, the only
connection between the defendants’ actions and what transpired in prison is that,
according to Holly, the defendants caused him to be convicted. This connection is too
attenuated to state a claim against the defendants relating to the prison incidents.

                                              3
Heck v. Humphrey, 512 U.S. 477 (1994).

        In Heck, the Supreme Court held that “where success in a prisoner’s § 1983

damages action would implicitly question the validity of conviction or duration of

sentence, the litigant must first achieve favorable termination of available state, or federal

habeas, opportunities to challenge the underlying conviction or sentence.” Muhammad v.

Close, 540 U.S. 749, 750 (2004) (per curiam). Holly’s claims are all based on the

argument that he was deprived of due process and, thus, implicitly question the validity of

his convictions. His convictions on ten counts have not been vacated and, therefore, his

claims are barred under Heck.

                                             III

        The decision of the district court characterizing Holly’s pleading as a 28 U.S.C. §

2255 motion is reversed. This case is remanded to the district court with instructions to

vacate its order characterizing Holly’s complaint as a second or successive § 2255 motion

and then to dismiss Holly’s complaint without prejudice for failure to state a claim upon

which relief can be granted. Holly’s request to proceed in forma pauperis on appeal is

granted. We remind Holly that he is still required to make partial payments of the filing

fee until it is paid in full.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge

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