                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUN 13 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 CHARLES D. WILKINS,

          Plaintiff - Appellant,
 v.                                                     No. 00-7013
                                                  (D.C. No. 99-CV-102-B)
 DENNIS FRIES; JOHN JAY                        (Eastern District of Oklahoma)
 WILLIAMS,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Charles D. Wilkins, appearing pro se, appeals from the district court’s

dismissal as untimely of his Bivens claims against defendants-appellees Assistant

United States Attorney Dennis A. Fries and appellant’s former court-appointed

counsel John Jay Williams. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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 10th Cir. R. 36.3.
      In February 1997, Wilkins, who is African-American, was tried by a jury in

United States District Court for the Eastern District of Oklahoma and convicted of

a cocaine-related criminal violation. During jury selection, Fries used a

peremptory challenge to strike Beverly Taylor, the only African-American

venireperson, citing as his reason the fact that she was a schoolteacher and it was

his practice to exclude members of that profession. Subsequent to the conviction,

it was learned that Fries had permitted non-minority schoolteachers to remain on

juries in previous cases. On February 26, 1997, the court ordered that Wilkins be

given a new trial, finding in light of that information that Fries’s articulated

reason for the peremptory strike was prextual and therefore unconstitutional under

Batson v. Kentucky, 476 U.S. 79 (1986). The government thereupon moved to

drop the charges against him, and the court dismissed the case.

      On March 9, 1999, Wilkins filed a civil suit in the same federal district

court, alleging that his constitutional rights were violated when Fries peremptorily

struck venireperson Taylor from the jury and that Fries conspired with defendant-

appellee Williams to deprive him of a fair and impartial trial as a result of the

Batson violation. Construing Wilkins’s pro-se pleadings liberally, as required by

Haines v. Kerner, 404 U.S. 519, 520 (1972), the court determined he had set forth

a claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). The court dismissed the suit as untimely, finding


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it fell outside the applicable statute of limitations established in Meade v. Grubbs,

841 F.2d 1512, 1522 (10th Cir. 1988), because pursuant to Heck v. Humphrey,

512 U.S. 477, 490 (1994), the cause of action had accrued on the date the district

court had ordered a new trial in his criminal case. This appeal followed.

      Like an action brought under 42 U.S.C. § 1983, a Bivens action as a

general matter “is subject to the statute of limitations of the general personal

injury statute in the state where the action arose.” Industrial Constructors Corp.

v. United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). In

Oklahoma, that statute of limitations is two years. See Meade, 841 F.2d at 1522;

see also Okla. Stat. Ann. tit. 12 § 95(3) (stating that “an action for injury to the

rights of another, not arising on contract, and not hereinafter enumerated” must be

brought within two years). Tolling of the statute of limitations is likewise

governed by Oklahoma state law, see Fratus v. Deland, 49 F.3d 673, 675 (10th

Cir. 1995), but “[f]ederal law, not state law, controls the issue of when a federal

cause of action accrues,” Industrial Constructors Corp., 15 F.3d at 968-69 (citing

Baker v. Board of Regents of the State of Kan., 991 F.2d 628, 632 (10th Cir.

1993); Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987)).

      As a general matter in a Bivens action, “[t]he statute of limitations begins

to run when the plaintiff knows or has reason to know of the existence and cause

of the injury which is the basis of his action,” i.e., “when he should have


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discovered it through the exercise of reasonable diligence.” Id. at 969 (citations

omitted). But where, as here, the Bivens action is based on an “allegedly

unconstitutional conviction . . . . or . . . other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” the cause of action

does not accrue until “the conviction or sentence has . . . been invalidated.”

Heck, 512 U.S. at 486-87. In the present case, Wilkins’s conviction was

invalidated based on the Batson violation when the court issued its order

according him a new trial, and therefore the statute of limitations began to run on

February 26, 1997. 1 He filed the present suit more than two years after that date,

rendering the action untimely, see Meade, 841 F.2d at 1522, and we discern no

grounds under Oklahoma law for the tolling of the two-year limitations period,

see Resolution Trust Corp. v. Grant, 901 P.2d 807, 813 (Okla. 1995) (stating that

under Oklahoma law the statute of limitations in tort cases is tolled until the

injured party knows or in the exercise of reasonable diligence should have known

of the injury). Wilkins’s invocation of Heck, 512 U.S. at 494 (Souter, J.,


      1
          This is not a case in which Heck precludes a Bivens claim “relating to
pending charges when a judgment in favor of the plaintiff would necessarily
imply the invalidity of any conviction or sentence that might result from
prosecution of the pending charges.” Beck v. City of Muskogee Police Dep’t, 195
F.3d 553, 557 (10th Cir. 1999). We noted in Beck that “[s]uch claims arise at the
time the charges are dismissed,” id., and therefore that is the moment of accrual
for statute of limitations purposes in such cases. In the present case, by contrast,
the Batson violation underlying Wilkins’s civil rights action only invalidated his
first trial and does not bear on the validity of any subsequent trial.

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concurring), for the proposition that the present cause of action did not accrue

until the court granted the government’s motion to dismiss the charges against

him is therefore misplaced. The district court thus correctly dismissed Wilkins’s

suit as untimely. Because we so hold, we need not reach appellees’ other

arguments for dismissing the instant action.

      The judgment of the district court is AFFIRMED.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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