                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            OCT 15 1999

                                 TENTH CIRCUIT                         PATRICK FISHER
                                                                                Clerk



 JERRY D. GRADY,

          Plaintiff-Appellant,

 v.                                                      No. 99-1227
                                                      (D.C. No. 99-Z-29)
 STATE OF COLORADO, real party in                         (D. Colo.)
 interest; GUS SUNDSTROM, Pueblo
 District Attorney,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See F ED . R. A PP . P. 34(f); 10th Cir. R. 34.1(A)(2). The case is

therefore ordered submitted without oral argument.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
       Jerry Grady filed a civil rights complaint under 42 U.S.C. § 1983

challenging the validity of his criminal conviction and seeking expungement of

the conviction and damages for illegal confinement. To the extent Mr. Grady

sought to overturn his conviction, the district court construed the complaint as

seeking a writ of habeas corpus under 28 U.S.C. §2254 and dismissed it for

failure to exhaust state remedies. The district court also dismissed the claim for

damages under Heck v. Humphrey, 512 U.S. 477 (1994). Mr. Grady appeals and

we affirm.

       On appeal, Mr. Grady asserts that he has in fact exhausted his state

remedies. This assertion is contrary to his complaint in the district court where he

alleged that he had not filed any other actions in state or federal court dealing

with the facts involved in this action. Mr. Grady’s conclusory assertions on

appeal do not satisfy his burden to establish that he has in fact raised the same

issues in state court. 1

       The district court correctly concluded that under Heck v. Humphrey,

       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, expunged by executive order, declared invalid by a



      Mr. Grady also contends he did not consent to transfer of this action to
       1

Judge Zita Weinshienk, whom he believes to be a magistrate judge. However,
Judge Weinshienk is a District Judge for the District of Colorado.

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      state tribunal authorized to make such determination, or called into
      question by a federal court’s issuance of a writ of habeas corpus, 28
      U.S.C. § 2254.

512 U.S. at 486-87. See also Fottler v. United States, 73 F.3d 1064 (10th Cir.

1996). Pursuant to Fottler. the district court dismissed Mr. Grady’s action

without prejudice. If Mr. Grady can establish he has in fact exhausted his state

court remedies, he may refile this action.

      The judgment of the district court is AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Chief Judge




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