                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 21, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 FRANK PARKER,

               Plaintiff-Appellee,                       No. 12-4133
          v.                                             (D. of Utah)
 STATE OF UTAH and SUSANNE                     (D.C. No. 2:11-CV-01127-CW)
 GUSTIN,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      This civil rights action arises from a complaint Frank Parker brought

against the State of Utah and the publicly appointed attorney who represented him

in state criminal matters. Parker claims he received ineffective assistance of

counsel during those criminal proceedings, leading to a guilty plea he now

regrets. We construe Parker’s filings liberally because he is proceeding pro se.


      *
         This order and judgment is not binding precedent except under the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
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.
See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). We

nonetheless conclude that the district court correctly dismissed Parker’s

complaint. We therefore AFFIRM.

      In 2003, the State of Utah charged Parker with misdemeanor counts of

sexual abuse of a minor, patronizing a prostitute, and possession of drug

paraphernalia, and a felony count of illegal possession/use of a controlled

substance. The state appointed a private attorney, Susanne Gustin, to represent

Parker.

      According to Parker’s § 1983 complaint, the state’s case began to fall apart

when it lost contact with the alleged sexual abuse victim. At that point, the state

began threatening to pursue the felony drug charge under a three-strikes provision

that authorized a prison sentence of five years to life. But the state offered to

forgo that course if Parker would plead guilty to sexual abuse of a minor.

      Parker says that Gustin strongly recommended taking the plea deal and in

fact became “violently annoyed” when Parker continued to profess his innocence.

R., Vol. 1, at 10. Parker then gave up his opposition and pleaded guilty in

January 2004 to the sexual abuse charge.

      Parker claims Gustin never informed him that a sexual abuse conviction

would subject him to sex offender registration requirements for the rest of his life.

Parker’s complaint suggests that he first learned about his sex offender status

sometime in prison. Parker has finished his prison sentence and is now

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encountering the difficulties that registered sex offenders typically face, such as

in obtaining employment and housing.

         In December 2011, Parker filed a pro se complaint in the District of Utah,

alleging that the State of Utah and Gustin violated his Sixth Amendment right to

effective assistance of counsel. Parker’s complaint claims $5 million in damages,

mostly through lost earning capacity.

         Both Gustin and the state timely filed motions to dismiss. A few weeks

later, Gustin filed an “amended motion to dismiss.” Parker claims he never

received Gustin’s original motion to dismiss, thus prompting him to move for

entry of default and default judgment against her shortly after she filed her

amended motion. The district court assigned all of these motions to a magistrate

judge.

         The magistrate judge recommended denying Parker’s motion for entry of

default given that Gustin had timely filed her motion to dismiss. The magistrate

judge said nothing about Parker’s claim that he never received the original motion

to dismiss.

         Concerning the motions to dismiss, the magistrate judge recommended

granting them because: (1) federal law does not permit a convict to challenge the

constitutionality of his conviction through § 1983; and (2) the limitations period

on a § 1983 claim had long since run. The magistrate judge further recommended

dismissing the State of Utah because the Eleventh Amendment immunizes states

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from § 1983 lawsuits. Finally, the magistrate judge recommended dismissing

Gustin because she did not act “under color of law” in her capacity as a state-

appointed defense attorney.

      Parker attempted to appeal the magistrate judge’s report and

recommendation directly to this court, but we dismissed that appeal for lack of a

final judgment. See R., Vol. 1, at 172–73 (Order, Parker v. Utah, No. 12-4072

(10th Cir. May 14, 2012)).

      Parker then filed objections to the report and recommendation with the

district court. Although Parker’s objections were untimely, the district court

nonetheless considered them on their merits. Accepting Parker’s allegations as

true, the district court concluded that Parker had “raised serious questions about

the effectiveness of his counsel.” R., Vol. 1, at 200. However, the district court

agreed with the magistrate judge’s legal analysis. The court therefore adopted the

report and recommendation in full and entered judgment accordingly, dismissing

the case.

      We need reach only the first basis for dismissal to affirm as to all

defendants.

      [I]n 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 state tribunal authorized to make such determination, or
      called into question by a federal court’s issuance of a writ of habeas

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      corpus. . . . Thus, when a state prisoner seeks damages in a § 1983
      suit, the district court must consider whether a judgment in favor of
      the plaintiff would necessarily imply the invalidity of his conviction
      or sentence; if it would, the complaint must be dismissed unless the
      plaintiff can demonstrate that the conviction or sentence has already
      been invalidated.

Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (citations and footnote omitted).

      Parker’s ineffective assistance of counsel claim would, if successful,

“necessarily imply the invalidity of his conviction or sentence.” Id. But Parker

does not allege that his conviction has been overturned, expunged, invalidated, or

called into question through habeas corpus. To the contrary, he admits that he

filed an unsuccessful post-conviction review proceeding in state court. There is

no record of him ever filing a 28 U.S.C. § 2254 petition in federal court.

Accordingly, the district court correctly concluded that his complaint must be

dismissed.

      As for the denial of Parker’s motions for entry of default and default

judgment, the district court did not abuse its discretion. The district court docket

plainly shows that Gustin timely filed a motion to dismiss. There is simply no

authority for the notion that the court should nonetheless enter default because the

plaintiff never received a copy of that motion. Such a circumstance would

certainly require the district court to ensure that the plaintiff was not prejudiced

by failure to receive the motion, but our review of the record shows no prejudice

here. Parker fully participated in the motion-to-dismiss proceedings and took


                                         -5-
every available opportunity to argue his case, including through objections to the

magistrate judge’s report and recommendation—which the district court accepted

despite their untimeliness. Accordingly, the district court committed no error in

denying Parker’s motion.

      For the reasons set forth above, we AFFIRM.

                                      ENTERED FOR THE COURT


                                      Timothy M. Tymkovich
                                      Circuit Judge




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