                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         DEC 10 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 GARY ANTHONY COLE,

          Plaintiff - Appellant,
                                                       No. 02-1253
 v.                                                 D.C. No. 01-Z-2506
                                                      (D. Colorado)
 MARY ANN TOWNSEND,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


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

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This is an appeal of the denial of a prisoner civil rights complaint pursuant

to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971). Appellant alleges that Appellee Deputy Regional Commissioner


      *
       This order and judgment is not binding precedent, except under the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.
for Social Security made false statements and presented false documents as a

witness in Appellant’s criminal case. Based on these allegations, Appellant

claims violations of his First, Fifth, Eighth and Fourteenth Amendment rights and

seeks injunctive relief and monetary damages. The district court dismissed the

complaint without prejudice for failure to state a claim for which relief can be

granted. The district court subsequently denied Appellant’s motion to reconsider.

Appellant appealed both the dismissal of his case and the denial of his motion.

      We review the dismissal of the complaint de novo and the denial of the

motion to reconsider for abuse of discretion. See Hunt v. Uphoff, 199 F.3d 1220,

1223 (10th Cir. 1999); Committee for the First Amendment v. Campbell, 962 F.2d

1517, 1523 (10th Cir. 1992).

      Appellant’s success on the merits of this case would necessarily imply the

invalidity of his criminal conviction. In Heck v. Humphrey, 512 U.S. 477, 486-87

(1994), the United States Supreme Court held that “in order to recover damages

for allegedly unconstitutional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal,” or otherwise declared invalid, called into question by

the issuance of a habeas writ, or expunged. Heck, 512 U.S. at 486-87.

      Appellant has failed to show that his conviction has been reversed or


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declared invalid. He points to the fact that the Fifth Circuit reversed the trial

court’s denial of his 28 U.S.C. § 2255 motion. However, that decision merely

sent the case back to the United States District Court for the Northern District of

Texas for development of the record and a potential evidentiary hearing

concerning Appellant’s competence and his claim of ineffective assistance of

counsel. See United States v. Cole, 135 F.3d 1410 (5th Cir. 1997) (unpublished).

Neither that decision nor any other has invalidated or reversed Appellant’s

conviction. Appellant has, pursuant to Heck, failed to state a claim for which

relief can be granted.

      Based on our conclusion that the dismissal was not in error, we further

conclude that the district court did not abuse its discretion in denying Appellant’s

motion to reconsider. During the pendency of this appeal, we received a letter

from Appellant requesting that he be permitted to withdraw his appeal and refile

it at a later date once he obtains counsel. Because we are simply affirming a

dismissal without prejudice, our affirmance will not produce any further prejudice

in bringing a subsequent action. We therefore DENY his request.

      AFFIRMED.

                                                      Entered for the Court


                                                      Monroe G. McKay
                                                      Circuit Judge


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