                                                               F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                MAY 3 2001
                          FOR THE TENTH CIRCUIT
                                                           PATRICK FISHER
                                                                     Clerk

FARAMARZ MEHDIPOUR,

             Plaintiff-Appellant,

v.                                              No. 00-6347
                                          (D.C. No. 00-CV-652-T)
CHARLES S. CHAPEL, Judge; RETA                  (W.D. Okla.)
M. STRUBHAR, Judge; GARY L.
LUMPKIN, Judge; CHARLES A.
JOHNSON, Judge; STEVE LILE,
Judge, individually and in their
official capacities as Judges of the
Oklahoma Court of Criminal Appeals,

             Defendants-Appellees.


FARAMARZ MEHDIPOUR,

             Plaintiff-Appellant,

v.                                               No. 00-6351
                                          (D.C. No. CIV-99-1983-T)
OKLAHOMA COUNTY BOARD                           (W.D. Okla.)
OF COUNTY COMMISSIONERS,
for Oklahoma County; PATRICIA
PRESLEY, individually or in her
official capacity as Court Clerk
of Oklahoma County; LISA
HAMMOND, individually or in her
official capacity as Assistant District
Attorney of Oklahoma County,

             Defendants-Appellees.
                            ORDER AND JUDGMENT                *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.


                       I. Background facts and proceedings

       Faramarz Mehdipour was convicted of intimidating a state’s witness in

Oklahoma state court in 1993. His conviction was overturned by the Oklahoma

Court of Criminal Appeals (OCCA) in 1995, but he was again convicted of the

crime in 1996. That conviction was upheld on direct appeal.       Mehdipour v. State ,

956 P.2d 911 (Okla. Crim. App. 1998). His federal habeas petition was

dismissed for failure to exhaust state remedies, and we upheld that dismissal.

See Mehdipour v. Snider , No. 98-6483, 1999 WL 606710 (10th Cir. Aug. 12,

1999). Mr. Mehdipour then petitioned for state habeas relief on the very same



*
      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.

                                          -2-
legal issues he raises in this § 1983 action, which was also denied.    See

Mehdipour v. State , No. PC 99-1530 (Okla. Crim. App. Apr. 4, 2000). On

April 25, 2000, he filed a second federal petition for habeas relief.   Mehdipour v.

Snider , No. 00-CV-793 (W.D. Okla.).      1




                                  II. Case No. 00-6347

       In case No. 00-6347, Mr. Mehdipour appeals from the dismissal with

prejudice of his complaint brought pursuant to 42 U.S.C. § 1983, which he filed

on April 6, 2000. Defendants are all judges of the OCCA; four of those judges

ruled against him in his second direct criminal appeal and all ruled against him in

his state habeas appeal. Mr. Mehdipour claims that he is entitled to compensatory

and punitive damages because these judges allegedly violated his constitutional

rights by ruling against him on the legal questions he raised, affirming his

convictions, and dismissing his habeas petition. He also requests injunctive relief

“prohibiting Defendant Judges from retaliating against Plaintiff for this suit.”

See R. Doc. 9, at 5-7. The district court dismissed Mr. Mehdipour’s § 1983




1
       Magistrate Judge Purcell entered an order on March 20, 2001,
recommending denial of the petition and Mr. Mehdipour was granted an
extension until May 6 in which to object to the recommendation. On April 26,
2001, Mr. Mehdipour filed yet another action seeking declaratory and injunctive
relief naming Magistrate Judge Purcell and all active and senior judges of the
Western District of Oklahoma as defendants.

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claims under Fed. R. Civ. P. 12(b)(6), holding that the judges are “immune from

liability for actions taken in their judicial capacity.”       Id. Doc. 19, at 2.

       We review de novo an order dismissing a complaint for failure to state a

claim under Rule 12(b)(6) using the same standard applied by the district court.

Ordinance 59 Ass’n v. United States Dep’t of Interior Sec’y          , 163 F.3d 1150, 1152

(10th Cir. 1998). “We accept as true all well-pleaded facts, as distinguished from

conclusory allegations, and view those facts in the light most favorable to the

nonmoving party.”      Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304

(10th Cir. 1998). “[D]ismissal pursuant to Rule 12(b)(6) will be upheld only if

‘it appears beyond doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief.’”          Id. (quoting Conley v. Gibson ,

355 U.S. 41, 45-46 (1957)).

       On appeal, Mr. Mehdipour agrees that it is well established that judicial

immunity protects judges from suit for acts performed in their judicial capacities.

See Stump v. Sparkman , 435 U.S. 349, 355-56 (1978). He argues that, because he

thinks the judges were wrong in their decisions upholding the state district court’s

criminal jurisdiction over him, they acted in the clear absence of jurisdiction in

deciding his state appeal and habeas petition and therefore are not immune from

liability. See id. at 356-57 (holding that judge may be subject to liability only

when he has acted in the “clear absence of all jurisdiction”). This argument is


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frivolous. It is beyond question that the appellate judges had subject matter

jurisdiction to decide Mr. Mehdipour’s appeals; therefore “they are absolutely

immune even when their action is erroneous, malicious, or in excess of their

judicial authority.”    Van Sickle v. Holloway , 791 F.2d 1431, 1435 (10th Cir. 1986)

(citing Stump , 435 U.S. at 356-57)).

       Mr. Mehdipour next argues that absolute judicial immunity is not a bar to

prospective injunctive relief against a judicial officer.   See Pulliam v. Allen ,

466 U.S. 522, 540 (1984). While that may be true, a review of Mr. Mehdipour’s

complaint shows that his only request for injunctive relief is a totally speculative

one concerning future retaliation. He has alleged no facts indicating that he has

ever been retaliated against by these judges or that retaliation is likely to occur in

the future absent our intervention. This argument is also frivolous.

       Finally, Mr. Mehdipour argues, without any legal support whatsoever,

that the district court somehow erred by taking only one day to review his

objections to the magistrate’s report and recommendations. In its order, the

district court discussed the objections, the facts, and the law, thereby fulfilling

the requirements that it issue “a brief order expressly stating the court conducted

de novo review.”       Northington v. Marin , 102 F.3d 1564, 1570 (10th Cir. 1996).

We conclude that dismissal of Mr. Mehdipour’s claims was proper and that this

appeal is frivolous.


                                              -5-
                              III. Case No. 00-6351

      Case No. 00-6351 also relates to Mr. Mehdipour’s conviction for

intimidating a witness. On December 14, 1999, he sued the Oklahoma County

Commissioners under § 1983 for allegedly failing to supervise and train

employees and permitting and ratifying the tampering of public records, including

documents submitted to the OCCA. Additionally, he sued the Oklahoma County

Court Clerk and the Assistant District Attorney of Oklahoma County under § 1983

and 28 U.S.C. § 1985 for allegedly conspiring to cause a false criminal offense to

be presented against him, tampering with and concealing court documents,

submitting false or misleading documents to the state court and the OCCA,

and denying him due process and equal protection of the law because they

were motivated by discriminatory racial animus.

      On September 15, 2000, the district court agreed with the magistrate

judge’s recommendations and granted defendants’ motion to dismiss under

Rule 12(b)(6), concluding that all but one claim was barred by the statute of

limitations and that there was no basis for tolling it. R. Doc. 18, at 3. In regard

to Mr. Mehdipour’s allegations of conspiracy to violate rights by causing a false

criminal offense to be filed and submitting false documents, the court concluded

that the adjudication of those claims would impact the pending federal habeas

petition filed on April 25, 2000, and that no § 1983 claim could lie unless his

                                         -6-
conviction was first invalidated.    Id. at 4 (citing Heck v. Humphrey , 512 U.S. 477,

486-87 (1994) (holding that plaintiff may not recover damages in § 1983 action

for allegedly unconstitutional conviction unless that conviction has either been

reversed on direct appeal or declared invalid in habeas corpus proceedings)).

The court dismissed this cause of action without prejudice in the event the

conviction was invalidated.

       On appeal, Mr. Mehdipour argues that (1) his claims are not barred by the

statute of limitations because his injury is ongoing, (2)   Heck does not apply, and

(3) the district court did not conduct an adequate review of his objections because

the court issued its decision only one day after his objections were filed. This

third argument has already been addressed above. For substantially the same

reasons as discussed in the magistrate judge’s report and recommendation,      see

R. Doc. 14, at 4-9, we reject Mr. Mehdipour’s statute of limitations argument.

We also reject his claim that   Heck does not apply simply because he now claims

he is not attacking the legality of his conviction and thinks that a judgment on his

damage claims would not necessarily imply that his conviction was unlawful.

Mr. Mehdipour admits that both his federal habeas action and his § 1983 action

are based upon the same alleged facts. Appellant’s Br. at 10. Clearly, success in

this § 1983 action would “necessarily imply the invalidity of his conviction,”

Heck , 512 U.S. at 487, and it was therefore properly dismissed.


                                             -7-
       Further, Mr. Mehdipour claims that the district attorney knowingly relied

on a preliminary hearing waiver that he claims was either false or technically

insufficient and also that she falsely stated she amended the information on which

he was convicted. These claims are jurisdictionally barred. Federal courts cannot

review § 1983 claims that formed the basis of, or are “inextricably intertwined”

with, a final state court judgment.   Van Sickle , 791 F.2d at 1436 (quotation

omitted). In affirming Mr. Mehdipour’s conviction, the OCCA specifically stated

that he had waived preliminary hearing and that the information was amended by

interlineation.   Mehdipour , 956 P.2d at 913. On habeas review, the court rejected

his arguments that there was not a state court record proving he waived

preliminary hearing or that the amendment of the information violated any

constitutional rights.   Mehdipour , No. PC 99-1530, slip op. at 2-3. Those

findings and conclusions are not reviewable in federal court except on habeas

review. See Van Sickle , 791 F.2d at 1436.

       The judgments of the United States District Court for the Western District

of Oklahoma in case Nos. 00-6347 and 00-6351 are AFFIRMED.



                                                      Entered for the Court



                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge

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