                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                           July 26, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 M ICH AEL LA W REN CE, CA RRO LL
 GR EGG , and W ILLIAM W ETM OR E,
                                                         No. 07-6054
               Plaintiff-Appellants,
          v.                                            (W .D. of Okla.)
 THE H ON OR AB LE ALLEN                          (D.C. No. CV -06-1266-F)
 M cCALL, and TH E C OM A N CHE
 C OU N TY D ISTR IC T C OU RT; THE
 H O N O RA BLE TWY L A G RA Y, THE
 HONORABLE JERRY D. BASS, and
 THE O KLA HO M A C OU NTY
 D ISTR ICT C OU RT; TH E
 HO NO RA BLE JOH N W . M ICH AEL,
 and THE G AR FIELD COU NTY
 D ISTR ICT C OU RT; TH E
 HONORA BLE CHARLES S.
 CHAPEL, and THE OKLAHOM A
 CO URT OF CRIM INAL A PPEALS,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
                                                                      (continued...)
      M ichael Lawrence, Carroll Gregg, and W illiam W etmore bring this pro se

civil rights appeal under 42 U.S.C. § 1983. The plaintiffs seek declaratory and

injunctive relief against several Oklahoma judges and courts. They contend that

Oklahoma’s sentencing procedures for defendants convicted of more than one

offense violate the Sixth Amendment. W e agree with the district court that the

plaintiffs failed to state a claim upon which relief may be granted, and DISM ISS

this appeal.

                                  I. Background

      The parties are familiar with the facts and procedural history of this appeal.

The plaintiffs in this case are linked together in that each has been convicted of

more than one offense under Oklahoma law and sentenced to consecutive, rather

than concurrent sentences. The court in each case sentenced plaintiffs pursuant to

Oklahoma statutory language:

      If the defendant has been convicted of tw o or more offenses, before
      judgment on either, the judgment may be that the imprisonment
      upon any one may comm ence at the expiration of the imprisonment
      upon any other of the offenses. Provided, that the sentencing judge
      shall, at all times, have the discretion to enter a sentence
      concurrent w ith any other sentence.

Okla. Stat. tit. 22, § 976.




      **
        (...continued)
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 submitted without oral argument.

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      The plaintiffs challenge the statute’s delegation to state judges of the power

to sentence criminal activity concurrently or consecutively when a conviction

includes multiple counts or multiple cases of criminal activity. They suggest that

Supreme Court precedents grant criminal defendants the right to have their total

punishment, including the consecutive or concurrent decision, decided by a jury.

Plaintiffs seek declaratory relief declaring the statutory language unconstitutional

and injunctive relief granting them new sentencing hearings.

      The magistrate judge disposed of the plaintiffs’ claims for failing to state a

claim upon which relief may be granted as required by 28 U.S.C. § 1915A(b)(1).

The magistrate judge determined the § 1983 claims were, in essence, an attempt at

habeas relief. Under well established Supreme Court precedent, § 1983 claims

that, if successful, would require the plaintiff to be released from prison are in

fact habeas requests, and must be dismissed. See Edwards v. Balisok, 520 U.S.

641, 648 (1997), Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez,

411 U.S. 475 (1973).

      The district court adopted the magistrate judge’s Report and

Recommendation, but noted the plaintiffs’ § 1983 claims for prospective

injunctive relief would not be barred, since a grant of prospective relief would not

imply the invalidity of the prior sentences. The court found, however, that the

plaintiffs’ claims for prospective relief should be dismissed because the plaintiffs

failed to allege facts indicating they were subject to pending criminal charges that

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might result in future sentencing proceedings from which a grant of prospective

relief would be proper. See Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983).

                                     II. Analysis

      Under Section 1915A(b)(1), “[a] complaint is subject to dismissal for

failure to state a claim if the allegations, taken as true, show that plaintiff is not

entitled to relief.” Jones v. Bock, 127 S. Ct. 910, 921 (2007).

      W e agree with the district court that plaintiffs’ claims are barred by Heck v.

Humphrey. The plaintiffs seek to distinguish their claims from those of Heck and

the other cases relied upon by the magistrate judge by referring to the Supreme

Court’s recent decision in Wilkinson v. Dotson, 544 U.S. 74 (2005). In that case,

the Supreme Court held prisoners were not barred from challenging the

constitutionality of state parole procedures through § 1983 declaratory and

injunctive relief. The Court distinguished the facts in Wilkinson from its prior

precedent by noting a successful challenge only meant the plaintiffs w ould

receive accelerated consideration for parole, but did not imply the invalidity of

their underlying conviction or sentence, claims that would have to be pursued

under habeas law. Id. at 82. The challenge raised by the plaintiffs here would

provide them w ith a new sentencing hearing— rather than a new parole hearing—

abetting what the Wilkinson court recognized Heck prohibited, a § 1983 suit

“where a favorable judgment would necessarily imply the invalidity of

[plaintiffs’] conviction or sentence.” Id. at 83 (emphasis in original) (citing

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Heck, 512 U.S. at 487). By finding the sentencing procedures used by Oklahoma

here unconstitutional, we would invalidate the plaintiffs’ prior sentences. Heck

does not allow us to so act. Cf. Clemente v. Allen, 120 F.3d 703, 705 (7th Cir.

1997) (challenge to concurrent or consecutive sentence in Bivens action barred by

Heck as challenge to sentence’s duration). Seeking a writ of habeas corpus is the

proper avenue.

      Finally, while the plaintiffs correctly assert that Heck does not bar them

from seeking prospective relief, the district court noted they have offered no

evidence that they risk facing the allegedly unconstitutional sentencing

procedures in the future and thus Lyons, 461 U .S. at 105–06, counsels against

letting a prospective relief claim go forward. W e agree with that assessment.

                                  III. Conclusion

      For the reasons above we AFFIRM the decision of the district court and

DISM ISS this appeal. In addition, we DENY plaintiffs’ application to proceed in

forma pauperis as moot in light of the fully paid filing fee.

                                               Entered for the Court,

                                               Timothy M . Tymkovich
                                               Circuit Judge




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